In Mohube v CCMA (JA18/2022) [2023] ZALAC 9, the Labour Appeal Court confirmed the approach to be followed by the CCMA in instances where CCMA users fail to attend on the scheduled day of their matters.
Occasionally, those who refer their dispute to the CCMA fail, for whatever reason, to attend their arbitration on the day it is scheduled. The law dealing with these instances was, until August 2021, settled and widely understood to operate as follows:
- In the case of non-attendance of an applicant (a referring party), a presiding commissioner is empowered to dismiss the matter in terms of Section 138(5)(a) of the LRA. In practice, this is done by making a dismissal ruling (dismissing the applicant’s case).
- In terms of Section 144, the party who failed to attend, is then permitted to apply to the CCMA to have the dismissal ruling rescinded. Such an application may be opposed by the other party.
- The CCMA determined whether the ruling should be rescinded by considering whether the party seeking rescission could demonstrate “good cause” – that is, could the defaulting party show (a) an absence of wilfulness; (b) a reasonable explanation for the default; (c) that the application for rescission is bona fide and not made with the intention to delay; and that (d) that there is a prima facie claim against the other party/ies.
- In terms of Section 158(1)(g), the rescission ruling may be taken on review by a party affected by it, if said party is of the view that a reasonable commissioner would have come to a different finding.
The processes outlined above became entrenched in the CCMA’s daily practices and were followed without controversy, until the Solomons judgment.
The Solomons Judgment
In August 2021, the Labour Court handed down judgment in the unreported matter of Solomons v Food Lovers Market Kempton Park (JR99/2021, 4 August 2021).
Moshoana J, seized with a review application in which the applicant sought to review and set aside a rescission ruling of the CCMA, made findings that fundamentally transformed the no-show landscape within the CCMA.
It is useful to briefly unpack the facts of the matter. A dismissed employee referred a dispute to the CCMA and the matter was set down for arbitration. The parties agreed to postpone the matter one of the witnesses had COVID) and so they did not arrive at the CCMA on the day of the arbitration. The appointed commissioner noted that the postponement agreement was only signed by one party, and thus exercised her powers in terms of Section 138(5)(a) by dismissing the matter.
The applicant applied to rescind the dismissal ruling, which was refused by the commissioner, even though the rescission application was not opposed by the employer. The employee then approached the Labour Court to review the CCMA’s rescission ruling.
In considering the review, Moshoana J formed the view that it was not necessary for the applicant to apply to rescind the dismissal ruling as it was “an exercise in futility.”
The learned Judge reasoned that use of the word “dismiss” in Section 138 is “truly unfortunate” in that dismissal is only appropriate when the merits of a matter have been heard. The Court held that it would be more appropriate to “strike off the matter” from the CCMA roll when parties fail to attend; and to re-enroll the matter if requested to do so.
The rescission ruling issued by the commissioner was accordingly declared a nullity in law, and the CCMA was directed to re-enroll the matter for arbitration.
In terms of the Solomons judgment, an applicant whose matter was ‘dismissed’ in terms of Section 138(5), did not need to apply for a rescission of the dismissal ruling but could apply to have the matter re-enrolled upon providing a satisfactory explanation for her/his failure to attend the arbitration.
The October 2021 Directive
Roughly 10 weeks after the delivery of the Solomons judgment, and in an effort to ensure that CCMA commissioners interpret the LRA in accordance with the decisions of the Superior Courts, the CCMA issued a directive that directed CCMA commissioners seized with arbitrations that were not attended by either party, not to dismiss the matter, but rather to remove the matter from the CCMA roll.
The directive stated that this did not constitute a ruling and thus there was no scope for a rescission of such a decision in terms of Section 144. Once removed from the roll, the case was to be recorded as ‘abandoned’ on the CCMA system, and the referring party was required to complete a request for re-enrollment form ‘within a reasonable time,’ giving reasons for their absence.
The Mohube Judgment
Fast forward to May 2023, when the Labour Appeal Court handed down judgment in the matter of Mohube v CCMA (JA18/2022) [2023] ZALAC 9.
Once again it is useful to briefly unpack the facts. The appellant was employed as Company Secretary of PRASA and was dismissed in April 2019, following a disciplinary hearing in which he was charged with misconduct relating to financial irregularities and fraud. The appellant referred a dispute to the CCMA but did not attend the arbitration on the day of the set down, resulting in the dismissal of his claim. Upon becoming aware of the dismissal, the appellant applied for rescission, which the CCMA refused. It is noteworthy that this all took place before the Solomons judgment.
The appellant subsequently applied to the Labour Court to review and set aside the rescission ruling, which application was also refused in September 2021. On appeal to the Labour Appeal Court, the Court held that the Labour Court should have found that the commissioner’s findings in relation to the rescission application, were not the findings of a reasonable commissioner. The appeal was accordingly upheld, and the Labour Court’s order was set aside. The CCMA’s rescission ruling was rescinded, and the LAC directed that the matter be set down before a different commissioner.
Most notably for present purposes, however, is the concurring judgment penned by Judge President Waglay, which squarely addressed the appellant’s reliance on the Solomons judgment. The appellant argued that the dismissal of his matter at the CCMA for non-attendance was “akin to the matter being struck off the roll,” and further that dismissal without consideration of the merits offended the right to fair labour practices and was irrational, invalid, and ineffective in law.
The learned Judge was critical of the Solomons judgment and found that the interpretation of the word “dismissal” in the judgment was egregious and could not stand. The Court opined that if the word dismissal was interpreted to mean that the matter is “struck from the roll,” the respondent in the matter may be required to wait indefinitely for the matter to reach finality. The Court mused that a “Lewis Carrol-type application where a word means what you choose it to mean cannot find application in the interpretation of statutes.”
Taking this one step further, the Court found that to interpret the word “dismissal” as meaning “struck off the roll” was to ascribe a meaning to the word which departed from the settled understanding of that word and alter the word to mean something other than what was intended by the legislature. In Waglay JP’s view, this served only to “create legal confusion and is neither helpful nor correct.”
The learned Judge held that the word “dismiss” should not be departed from or attributed a different meaning, as the Court sought to do in Solomons. The Court noted that although Section 138(5) gives a commissioner the power to “dismiss,” the LRA uses the phrase “may” dismiss, which indicates that the power to dismiss must not be exercised mechanically or unconsciously.
It requires the commissioner to exercise discretion when deciding whether to dismiss the dispute and to appreciate that a decision to dismiss due to non-attendance is drastic and to be made only as a last resort, as it brings the dispute to finality.
Directive of May 2023
In light of the Mohube judgment, the CCMA published a new directive on 27 May 2023, which provided that the October 2021 directive is repealed with immediate effect. In terms of the new directive, commissioners are directed to interpret Section 138(5)(a) in accordance with the LAC’s approach, and are directed that they may dismiss matters, provided they do so as a last resort.
Furthermore, dismissal rulings made by commissioners in terms of the above may again be rescinded on application by a party in terms of Section 144.
The CCMA indicated that it would issue guidelines dealing with the factors to be considered by commissioners when exercising their power to dismiss, as well as how to deal with matters that are pending in terms of the old directive.
Conclusion
The LAC’s judgment in Mohube essentially revives the legislative framework that applied before the Solomons judgment. The course of litigation outlined above, and the principles enunciated by the LAC, however, indicate that commissioners who preside over processes not attended by the referring party are under a duty to be proactive and apply their mind to the reasons for the absence, and to ensure that matters are dismissed on the basis of non-attendance only as a measure of last resort.