Ngobe v J.P Morgan Chase Bank (JR1893/2012, JR1882/2012) [2015] ZALCJHB 317 [2015] JOL 34139 ; (2015) ILJ 3137 (LC) (17 August 2015) per Van Niekerk J.

The Labour Court reviewed an award and upheld the employer’s cross-review and set aside a finding of unfair procedure and replaced it with an order that the applicant’s dismissal was substantively and procedurally fair.

‘There is a trend in the CCMA for commissioners to intervene on this basis and to halt arbitration proceedings and refer a dispute to this court when the commissioner forms the view that he or she has no jurisdiction on the basis that the real dispute between the parties concerns a reason for dismissal that is listed as automatically unfair.

This is an unfortunate trend.  A party referring a dispute to the CCMA must stand or fall on the merits of that dispute. If it is clear from an initial interrogation of the dispute that the applicant has erred in referring a dispute concerning an automatically unfair dismissal to the CCMA, there can be no harm done in advising an applicant of that fact and that the matter ought appropriately to be referred to this court for adjudication.

However, where as in the present instance, the parties make conscious decisions to run a case in an arbitration process in full appreciation of the jurisdictional consequences of their election, it is not appropriate for commissioners to intervene by abandoning the proceedings, thereby dictating to parties what he or she thinks their real dispute is and how it should be litigated’ [para 12].