What happens in an arbitration matter where the referral party is not present?

I am sure that many of you may have wondered what the outcome will be in cases where the referral party is a no-show at arbitration. There are two pertinent court cases in this regard which will be discussed below.

The History:

On 02 August 2021, Justice Moshoana handed down judgment in the Labour Court (LC) matter of Solomons v Food Lovers Market, Kempton Park, ruling that the dismissal of a matter due to non-attendance at arbitration by the referring party is an “administrative act” and should not be dealt with by way of a “ruling”.

For practicality’s sake, this meant that a commissioner would only remove the matter from the roll and that the referring party may then request the matter to be “re-enrolled” at a later stage in accordance with the prescribed procedure. Since there is no “ruling”, there is no scope for an application for rescission in terms of section 144 of the Labour Relations Act.

The Current Position:

In the recent Labour Appeal Court judgment of Mohube v CCMA & Others (JA/18/2022), delivered on 18 May 2023, the Labour Appeal Court (LAC) rejected the interpretation of section 138(5)(a) as per Solomons v Food Lovers Market, Kempton Park. The Directive dated 05 October 2021 on the Determination of Dismissals under section 138(5)(a) of the LRA was repealed with immediate effect.

The latest Directive by the CCMA:

The CCMA Directive on the Determination of Dismissals under section 138(5)(a) of the LRA of 5 October 2021 is repealed with immediate effect.

Commissioners have the power to dismiss matters in terms of section 138(5)(a) of the LRA. However, as per the LAC, commissioners are directed to utilize this power as a last resort.

In cases where a dismissal has been ruled, parties have a right to apply to have the ruling rescinded in terms of section 144 of the LRA read with CCMA Rule.

A ruling issued in terms of rule 30 is a ruling contemplated in terms of section 144 of the LRA.

The CCMA will issue guidelines within seven (7) working days (by 09 June 2023) of the date of this Directive on what factors may be considered when exercising the power to dismiss and on how to deal with matters that are pending in terms of the CCMA Directive on the Determination of Dismissals under section 138(5)(a) of the LRA of 5 October 2021 and Rules 30(1)(a) and (b)’ (CCMA ‘Directive on section 138(5)(a) of the Labour Relations Act 66 of 1995, read with CCMA Rule 30 on the power of a commissioner to dismiss a matter for non-attendance at arbitration.

Click here to access the Directive information:

To date, the CCMA have not issued guidelines on factors to be considered when exercising the power to dismiss and how to deal with matters pending in terms of the CCMA’s repealed October 2021 directive.

What happens in an arbitration matter where the referral party is not present?

Should you have any questions, please send them to the General Secretary at gs@peasa.org.za

Contact Us