For the last 20 years CCMA commissioners have not really adopted a holistic approach and given effect to the purpose of the labour laws.  Section 74(2) of the Basic Conditions of Employment Act (BCEA) was amended in September 2014.  No longer do ‘money claims’ have to be included in the referral of unfair dismissal disputes, although such claims will prescribe after three years.

Balance of interests

In resolving dismissal disputes it is now necessary to balance the interests of employees and the enterprise, even when ‘money claims’ only emerge during the actual arbitration.  As from April 1, 2015 the governing body of the CCMA introduced new ‘Guidelines on Misconduct Arbitration’.  It is stated that s 74(2) of the BCEA confers the necessary jurisdiction on CCMA commissioners to resolve valid claims for amounts owing by employers in terms of the BCEA. Those amounts include, but are not limited to, claims for commission, unpaid salary or wages, overtime or leave pay’.

No referral of money claims required

According to para 145:

“As a result, an arbitrator may exercise jurisdiction if the claim only emerges during an arbitration and has not been raised in the referral form.  In such a case, the employer would be entitled to a postponement in order to respond to the claim. . . . .  However, once an arbitrator has made a determination in respect of an amount owing in terms of the [BCEA], no compliance order may be issued or enforced and no other legal proceedings may be instituted in respect of the claim”.

 

Holistic approach

This holistic approach is clearly intended by not only the ILO 1982 Convention on Termination but also the Labour Relations Act (LRA).  Section 185 of the LRA only guarantees employees the right ‘not to be unfairly dismissed’.  A valid and reason to dismiss must be ‘commercially rational’.  But it does not require ‘fault’ or even ‘misconduct’.  Fault is relevant but only ‘gross misconduct’ causes employees to forfeit the right to reasonable notice and severance benefits.  Operational requirements is a valid and fair reason to dismiss without any suggestion of fault, so why do some still think that ‘misconduct’ has to be proved?  The simple answer is the balancing effect of reasonable notice and severance benefits.

Conciliation

When the CCMA was created 20 years ago it seems the intention was to limit its jurisdiction to claims based on unfairness as opposed to unlawfulness.  A guiding principle was that all such claims had to be referred to conciliation before being arbitrated or adjudicated.  Money claims were not really intended to be resolved by the CCMA.  To resolve such claims, being based on causes of action arising at common-law or under a statute, such as the BCEA, would have meant special training for  commissioners to deal with aspects of law apart from just alleged unfairness, which had effectively been codified.

Original BCEA s 74(2)

Section 74(2) before the latest amendment allowed the CCMA to resolve money claims, but only together with unfair dismissal claims and provided inter alia they:

  • were referred in terms s 191 of the LRA; and
  • the money had been owing for less than one year.

Sutherland JA [Davis and Musi JJA concurring] in Zapop (Pty) Ltd v CCMA  (CA21/2014) [2016] ZALAC 16; (2016) 37 ILJ 1882 (LAC) (12 May 2016) upheld an award of Bill Maritz in the CCMA where R1,806,520.92, plus interest, was awarded to an employee.  The LAC held that commission was a claim for an amount owing in terms of the BCEA.

Earlier decisions

In Maleiba / Six Up Seafoods [2000] 4 BALR 376 (CCMA) commissioner Floors Brand held that he lacked jurisdiction to resolve a claim for accrued leave and notice pay.  Although the claim arose under the BCEA and could be dealt with jointly with the unfair dismissal, the ‘money’ claim had not been included in the referral.

In Douglas & others v Gauteng MEC for Health [2008] 5 BLLR 401 (LC) Van Niekerk J declined to countenance a claim for  remuneration for one month because the claim had not been included in the referral of the unfair dismissal dispute.

Coppin AJA in De Beer v Minister of Safety and Security/Police and another [2013] 10 BLLR 953 (LAC) pointed out that even though the labour court had exclusive jurisdiction in respect of all matters in terms of the BCEA it did not have jurisdiction to resolve a dispute about the interpretation and application of a collective agreement contemplated in section 24 of the Act.  He further pointed out that

“despite sections 77 and 77A of the BCEA, section 74(2) of that Act provides that if an employee institutes proceedings for unfair dismissal, . . . the arbitrator, hearing the matter, may also determine any claim for an amount that is owing to that employee in terms of the BCEA, provided, inter alia, that the claim is referred in compliance with section 191 of the Act’.

Grasp the nettle

It is to be hoped that CCMA commissioners will grasp the nettle during the conciliation phase of unfair dismissal disputes and point out to the parties that even a dismissal for a valid and fair reason does not automatically deprive employees of the right to reasonable notice, and in some instances even severance benefits.  By law employees only forfeit those rights if they materially breach the employment contract, or, in other words, engage in conduct that is serious or gross; such as wilful dishonesty.  Once this message gets through to employers it is hoped that most disputes can be amicably resolved at the conciliation stage.  Looking further into the future once the message filters back to senior management they will start considering the legitimate claims of dismissed employees to reasonable notice and severance benefits and be willing to discuss those aspects internally and so avoid the need for dismissal disputes to be referred to the CCMA.