Statutory & Private dispute resolution clauses for employment / labour disputes
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.
CCMA
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
Bargaining Council
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
Private Agency
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
Private ADR Process (fac, med, con)
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
Private Arbitration Process
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