Determining Jurisdiction At Conciliation or
Arbitration?
2010 CCMA COMMISSIONERS INDABA
“Against all Odds”
Ritz Hotel
2 – 4 December 2010
What is jurisdiction?
 Authority of the CCMA to conciliate and arbitrate
disputes between parties
 Limitations on such authority
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CCMA is an independent statutory body
established in terms of s 112 of the LRA
It does not have inherent jurisdiction
Its jurisdiction is not derived from the common law
(like the High Court) but stems solely from Acts of
Parliament
Where should jurisdiction be dealt
with: Con or Arb?
 There has been a lot of confusion about where
jurisdictional issues should be dealt with
 Some have argued that jurisdiction should be
dealt with at the doorstep of the CCMA, ie in
Conciliation = justification is = you cant come in if
you do not belong at the CCMA
 Some have argued that it should be dealt with at
arbitration as conciliation is a process merely to
try and resolve the matter and not deal with
serious issues
Bombardier Transportation (Pty) Ltd
v Mtiya NO and others (LC)
The Facts:
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Johannes
(third
respondent)
employed
by
Bombardier China in terms of a fixed term contract
Contract to expire in June 2008
Remuneration to be paid to his account in Hong
Kong (where he was resident) despite working in SA
Contractual clause: terms to be interpreted and
enforced in line with the laws of Hong Kong
Contract extended – 18 September 2008,
Bombardier advised J that the contract would only
be extended for 6 more months
Bombardier Transportation (Pty) Ltd
v Mtiya NO and others (LC)
 Applicant claimed that J terminated the contract
and left its employ on 31 October 2008
 10 November 2008: unfair dismissal dispute
referred to the CCMA
 2 February: applicant filed an application in terms
of Rule 14: argued that the CCMA lacked
jurisdiction because it argued that:
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the law of Hong Kong applied; and
the applicant had not dismissed J
 The Commissioner issued a certificate of non
resolution (expiry of 30 days) & advised Er to raise
the jurisdictional issue at Arbitration
Reliance on Basson J in EOH
Abantu (Pty) Ltd (2008):
 Held
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that a commissioner was bound to decide any
jurisdictional point raised in conciliation proceedings before
issuing a certificate of outcome
Failure to do so = reviewable irregularity
IE: CCMA must assess whether it has jurisdiction before
conciliation commences
If a conciliating commissioner issues a certificate of outcome
without the jurisdictional conditions having been met,
arbitrating commissioner has no power to dismiss the matter
because of lack of jurisdiction
Arbitrator then bound to arbitrate unless the certificate is
reviewed and set aside
(Based on Fidelity Guards Holdings (Pty) Ltd v Epstein NO
LAC – dealt with a dispute referred outside the statutory
time limits)
Alternative approach:
Cele J in EOH Abantu [2010] (LC)
 Conciliating commissioner makes no ruling
on the jurisdictional challenge, but defers that
determination to the arbitration phase of the
statutory dispute resolution process
Van Niekerk J’s “Third Way”
 Recognises that many ‘jurisdictional issues’ raised
at conciliation proceedings are not jurisdictional
questions ‘in the true sense’
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Eg whether a person is an IC or an ‘employee’ (ito s
213): better to be dealt with during arbitration
proceedings
Same with the issue as to whether or not there was
a ‘dismissal’
Not necessary to deal with these matters prior to
conciliation
Held that these issues are not jurisdictional
questions contemplated by Rule 14
‘True jurisdictional questions’
 To be dealt with during initial screening of
referrals: otherwise to be raised and dealt with
during the conciliation phase:
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Whether the referring party referred the dispute
within the time limit prescribed by s191(1)(b);
Whether the parties fall within the registered scope
of a bargaining council that has jurisdiction over the
parties to the dispute (to the exclusion of the
CCMA); and
Perhaps whether the dispute concerns an
employment-related matter at all
Key distinction
 Between ‘facts that the legislature has decided
must exist before the CCMA acquires power to
act, and facts which must be proved by the
referring party’ (to be dealt with at arbitration)
 IE CCMA power to determine the fairness of a
dismissal includes the power to determine
whether or not an applicant was an employee, and
whether she was dismissed
 Ordinarily fall to be dealt with as part of
adjudication functions
 THEREFORE: conciliating commissioner under
no obligation to determine such issues at
conciliation
The irrelevance of a certificate of
outcome
 Goldfields Mining South Africa v NUM [2009]
(LC) (Van Niekerk)
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Attach no jurisdictional significance to the certificate
of outcome
Regard the certificate as no more than a record
that on a particular date, a dispute referred to the
CCMA remained unresolved
Commissioner’s categorisation of dispute has no
bearing on the future conduct of the proceedings
and no legal significance (because not a function
contemplated by the Act)
Forum for subsequent proceedings is determined
by what the employee alleges the dispute to be –
not what the certificate says
S 191(5)
 ‘If
a council or a commissioner has certified that
the dispute referred remains unresolved, or if 30
days have expired since the council or the
Commissioner received the referral and the
dispute remains unresolved –
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a) the council or the Commission must arbitrate the
dispute at the request of the employee
Wording contemplates that if 30 days have elapsed
from date referral received, the dispute may be
referred to arbitration or to court without a certificate
of outcome (relying on Seeff v Mbhele NO)
THEREFORE
 Effect of a certificate of outcome is minimal, if
there is any effect at all – actually, it has nothing
to do with jurisdiction
 (No more than a document issued by a
commissioner stating that on a particular date, a
dispute referred to the CCMA for conciliation
remained unresolved)
 Does not confer jurisdiction on the CCMA to do
anything that it is not empowered to do
 Nor does it preclude the CCMA from exercising
any of its statutory powers
‘Jurisdiction either exists as a fact
or it does not’
 A party may challenge CCMA’s jurisdiction (in the
‘true sense’?) to deal with an unfair dismissal
dispute whether or not a certificate of outcome has
been issued
 Jurisdiction is not granted or afforded by a CCMA
commissioner issuing a certificate of outcome
Role of rule 14?
 On this approach, the rule does nothing more than
require a conciliating commissioner to give proper
consideration to any jurisdictional points raised
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Including an assessment of whether it is a ‘true’
jurisdictional point and, if so
Whether it is reasonably capable of being disposed
of prior to conciliation, or properly left to the
arbitration stage
SUMMARY: The proper response
of a commissioner to jurisdictional
challenges
 1. Commissioner may elect to determine a
jurisdictional question or defer it
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guided by: the nature of the challenge;
whether the matters are intimately bound up with
the substantive merits of the dispute;
determination of difficult questions of mixed law and
fact; and
the need for evidence to resolve them
Whether or not the applicant is an ‘employee’ or
whether or not the employee is dismissed are not
truly jurisdictional issues, should be deferred to
the arbitration phase
SUMMARY: The proper response
of a commissioner to jurisdictional
challenges
 2. If a jurisdictional challenge is heard and upheld
prior to the commencement of conciliation, that
ends the dispute
 Certificate of outcome unnecessary
 Ruling binds the CCMA and all parties
 Jurisdictional ruling stands unless and until it is
reviewed and set aside by the LC
SUMMARY: The proper response
of a commissioner to jurisdictional
challenges
 3.
If within the 30-day period, conciliating
commissioner elects not to determine any
jurisdictional challenge, issue certificate because
conciliation has failed
 4. If 30 days have elapsed, issue certificate, despite
existence of any jurisdictional challenges, because
of s 135(5)
 5. Certificate has no bearing on any jurisdictional
issue raised by any party – not relevant to any
process in which a jurisdictional question is
determined
Dealing with jurisdiction at
arbitration
 6. In the absence of any relevant and prior
jurisdictional ruling (made by a conciliating
commissioner), any party to a dispute referred to
arbitration may raise any challenge to the CCMA’s
jurisdiction at that stage
 The challenge must be dealt with by the arbitrating
commissioner in terms of s 138(1): “the commissioner
may conduct the arbitration in a manner
commissioner considers
appropriate in
determine the dispute fairly
and quickly, but
with the substantial
merits of the dispute
minimum of legal formalities”
that the
order to
must deal
with the
The merits of the review
application in Bombardier
 Is it a reviewable irregularity for a conciliating
commissioner to defer a challenge to the CCMA’s
jurisdiction to the arbitration phase?
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No.
Private international law issues raised the complexity
of the matter
Rule 14 to be read in this light
Certificate had been properly issued
Dispute to be enrolled for arbitration – jurisdictional
challenges to be determined at this stage
CONCLUSION
 Benefit of Van Niekerk J’s ‘Third Way’?
 Emphasis in conciliation on ‘trying to settle’
 Allows for conciliating commissioners to be spared the
rigours of complex ‘jurisdictional’ points and to focus on
settlement
 Pragmatic in terms of process streamlining
 The change in approach
 Remember: LAC in Zeuna-Starker v NUMSA held that a
conciliator is obliged to enquire into the facts of a case
prior to conciliation
 Re-explanation of the notion of ‘jurisdiction’ necessitated:
‘who, what, when, where’ approach to be re-visited along
with the new understanding of Rule 14
 Is the finding (at arbitration) that the applicant was not an
employee or was not dismissed expressed in the form of
a ‘jurisdictional ruling’?