Statutory & Private dispute resolution clauses for employment / labour disputes

Jurisdictional image

Jurisdictional Chart

[74] The specific term “jurisdiction”, which has resulted in some controversy, has been defined as the “power or competence of a Court to hear and determine an issue between parties.”…”
Gcaba v. Minister of Safety and Security & Others (2010) 31 ILJ 296 (CC), quoting Graaff-Reinet Municipality v Van Ryneveld’s Pass Irrigation Board 1950 (2) SA 420 (A) at 424.

Tanya Venter, Tokiso, presented LET THE CASE BEGIN: Dispute Resolution Clauses and Jurisdictional Challenges at the 25th SASLAW National Conference on 6 October 2022.

Dispute resolution clauses in employment contracts deviating from the LRA have become more common, particularly for executives. This includes but is not limited to private arbitration clauses and s188A inquiry by arbitrator processes. With the introduction of these clauses, it is not uncommon for jurisdictional issues to arise. These include (1) which institution has jurisdiction (CCMA, bargaining council, or a private agency); (2) who appoints the presiding officer; (3) which process to follow (conciliation first, or just arbitration, or is it a s188A); and (4) which legislation applies (LRA or Arbitration Act). Below is a summary of the legal framework, jurisprudence, and how arbitrators make decisions on these matters.

  • Relevant Legislation: LRA (s115)

    Who: Inherent jurisdiction created by statute

    Scope: s115 of LRA, s189A – facilitator

    Who appoints presiding officer: CCMA

    How paid for: Drawdown from Dept of Employment and Labour

    Subpoena: LRA (s142) issued by commissioner, signed by Director (or delegate), CCMA Rule 37

    Order of Court: CCMA Director, s143(3)

    Review: Labour Court s145

  • Relevant Legislation: LRA, s28(1) & s51

    Other Requirements: Registration (s29) & CCMA accreditation (s127) & Collective agreement/s

    Who: Industry scope, Parties to BC, Non-parties to BC (if extended & accredited)

    Scope: S51(3) – interp & appl of CA; , severance pay, s188A; strike/lockout cons, disputes in essential services, unfair dismissals, ULPs, severance pay, s188A

    Who can conduct process: CCMA accredited commissioners, s189A – facilitator (by agreement)

    Who appoints presiding officer: BC, Some BCs – parties can agree otherwise BC appoints

    How paid for: Dispute Resolution Levies Subsidies from CCMA (s132)

    Subpoena: LRA (s142) issued by commissioner, signed by GS (or delegate), Per BC Rules

    Order of Court: CCMA Director, s143(3)

    Review: Labour Court s145

  • Relevant Legislation: LRA, s127

    Other Requirements: CCMA accreditation (s127) & Collective agreement/s OR Employment Contract clause OR Agreement

    Who: Valid agreement

    Scope: s127(1), cons, arbs, s188A IBA, excludes organisational rights, demarcation, disclosure of info, workplace forums, joint decision making, stat councils, interp & appl where no procedure in CA, Enforcement, S189A (on form, not in statute)

    Who can conduct process: CCMA accredited commissioners s189A(4) – facilitator (by agreement)

    Who appoints presiding officer: Parties agree otherwise Tokiso appoints

    How paid for: Parties (employer if employee under threshold), Subsidies from CCMA (s132) possible

    Subpoena: LRA (s142) issued by commissioner, signed by CEO (or delegate), Tokiso Rule 37

    Order of Court: CCMA Director, s143(3)

    Review: Labour Court s145

  • Relevant Legislation: None

    Other Requirements: Collective agreement/s OR Employment Contract clause OR Agreement

    Who: Valid agreement

    Scope: Scope determined by agreement

    Who can conduct process: Any selected person

    Who appoints presiding officer: Parties agree on person or process to appoint

    How paid for: Parties, as per agreement

    Order of Court: High Court / Labour Court

  • Relevant Legislation: Arbitration Act

    Other Requirements: Collective agreement/s, Employment Contract clause, Agreement

    Who: Valid agreement

    Scope: Scope determined by agreement

    Who can conduct process: Any selected person

    Who appoints presiding officer: Parties agree on person or process to appoint, High Court

    How paid for: Parties, as per agreement or applicable Rules

    Subpoena: Clerk of Magistrates Court (s16(1)(b)), “procured by any party”

    Order of Court: High Court s31

    Review: High Court / Labour Court s33