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Name of presenter: Craig Bosch Title of Presentation : Jurisdictional issues in the CCMA SASLAW SEMINAR 24 APRIL 2012.

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Presentation on theme: "Name of presenter: Craig Bosch Title of Presentation : Jurisdictional issues in the CCMA SASLAW SEMINAR 24 APRIL 2012."— Presentation transcript:

1 Name of presenter: Craig Bosch Title of Presentation : Jurisdictional issues in the CCMA SASLAW SEMINAR 24 APRIL 2012

2 Jurisdiction to conciliate  There must be a ‘dispute’ which may be referred to the CCMA for conciliation What if the dispute has allegedly been settled?  There must be no bargaining council with jurisdiction over the parties to the dispute, unless the CCMA has assumed jurisdiction in terms of s147  There must have been proper service on the other party/ies and the referral from must have been properly completed

3 Jurisdiction to conciliate  Must the applicant be an ‘employee’?  Yes: Seeff Residential Properties v Mbhele NO & others (2006) 27 ILJ 1940 (LC); EOH Abantu (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & another (2008) 29 ILJ 2588 (LC); Virgin Active SA (Pty) Ltd v Mathole NO & others(2002) 23 ILJ 948 (LC) and Sanlam Life Insurance Ltd v Commission for Conciliation, Mediation & Arbitration & others (2009) 30 ILJ 2903 (LAC)(2006) 27 ILJ 1940 (LC)(2008) 29 ILJ 2588 (LC)(2002) 23 ILJ 948 (LC) (2009) 30 ILJ 2903 (LAC)  No: Bombardier Transportation (Pty) Ltd v Mtiya NO & others (2010) 31 ILJ 2065 (LC) - this is not a ‘true jurisdictional issue’

4 Jurisdiction to conciliate  If something is a true jurisdictional issue when must it be determined?  Bombardier Transportation (Pty) Ltd v Mtiya NO & others (2010) 31 ILJ 2065 (LC) – commissioners have an election to defer decisions on certain jurisdictional points to arbitration  Difficulties with this  Is the point practically moot in any event?  What is NOT required: proof that an applicant was ‘dismissed’ or has a claim that in fact relates to a ‘promotion’ or ‘demotion’ or ‘benefit’

5 Jurisdiction to arbitrate  A dispute that remains unresolved. Here it becomes relevant whether or not the matter has been settled. And commissioners have the power to determine that if it is contested.  The employee must have been ‘dismissed’ (see SA Rugby Players Association & others v SA Rugby (Pty) Ltd & others; SA Rugby (Pty) Ltd v SA Rugby Players Association (2008) 29 ILJ 2218 (LAC); University of Pretoria v CCMA & others (2012) 33 ILJ 183 (LAC) or have a claim that falls within the parameters of the ULP definition in s186(2) (see IMATU obo Verster v Umhlathuze Municipality & others (2011) 32 ILJ 2144 (LC))(2008) 29 ILJ 2218 (LAC)  But should this be so?: Asara Wine Estate & Hotel (Pty) Ltd v Van Rooyen & others (2012) 33 ILJ 363 (LC)

6 Jurisdiction to arbitrate  The dispute must have been referred for arbitration or a late referral must have been condoned  The dispute must have been referred for conciliation  What is the significance of any certificate that has been issued?  Fidelity Guards Holdings (Pty) Ltd v Epstein NO & others (2000) 21 ILJ 2382 (LAC) read with EOH Abantu (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & another (2008) 29 ILJ 2588 (LC); IMATU obo Verster v Umhlathuze Municipality & others (2011) 32 ILJ 2144 (LC); Velinov v University of Kwazulu-Natal & others (2006) 27 ILJ 177 (LC)(2000) 21 ILJ 2382 (LAC)(2008) 29 ILJ 2588 (LC)  But see Bombardier Transportation (Pty) Ltd v Mtiya NO & others (2010) 31 ILJ 2065 (LC)

7  Dispute must have been referred for arbitration (continued)  Cases other than those relating to a lack of condonation at conciliation: Avgold - Target Division v Commission for Conciliation, Mediation & Arbitration & others (2010) 31 ILJ 924 (LC); Bombardier Transportation (Pty) Ltd v Mtiya NO & others (2010) 31 ILJ 2065 (LC) and Parliament of RSA v NEHAWU obo members & others (2011) 32 ILJ 2534 (LC)(2010) 31 ILJ 924 (LC)  CCMA Guidelines on Misconduct Arbitrations item 24 Jurisdiction to arbitrate

8 The review of decisions on jurisdiction  SA Rugby Players Association & others v SA Rugby (Pty) Ltd & others; SA Rugby (Pty) Ltd v SA Rugby Players Association (2008) 29 ILJ 2218 (LAC): the test is correctness (2008) 29 ILJ 2218 (LAC)  Is that correct?  Consider: Carephone (Pty) Ltd v Marcus NO & others (1998) 19 ILJ 1425 (LAC) and Shoprite Checkers (Pty) Ltd v CCMA & others (2009) 30 ILJ 829 (SCA)


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