Referring arbitrable disputes: Reasonable time?

3 Comments

1. 

   GilesFiles on July 29, 2015 at 5:17 pm

   Extracts from Weekly Comment by Prof Darcy du Toit: Referring an unfair dismissal dispute to arbitration: A new pitfall? in IR Network published by LexisNexis [subscription required]

   In motivating its conclusion, the court noted that “there is no requirement in [s 191(5)], as in s 135(2) of the LRA, that the parties may agree to extend the 30 day period [for conciliation].” This, it found, was because section 191(5) contemplates that an employee will be entitled to refer an unresolved dispute to arbitration on expiry of 30 days from the date of referral to conciliation. The effect, it concluded, is that

   “any extension of this 30 day period [in the absence of legal provision for this] will effectively deny the dismissed employee or an employee alleging an unfair labour practice the right to refer his or her dispute to arbitration or adjudication on the lapse of the [90] day period contemplated in s 191(5) of the LRA” (para 36).

   But is that what the legislature intended? Section 191(5) was amended in 2014 to precisely provide (as in section 135(2)) that arbitration may be requested upon expiry of 30 days from referral to conciliation “or any further period as agreed between the parties”. Had this amendment been in force when the present dispute was referred, the 90-day period would only have commenced on 10 April 2004 and this issue would not have arisen.
   . . . .

   What is at stake, after all, is their constitutional right to fair labour practices as well as their right of access to a court or tribunal, as regulated by section 191(5).

   In reaching its conclusion in this matter the Labour Appeal Court overturned its previous ruling in Fidelity Guards Holdings (Pty) Ltd v Epstein and Others [2000] 12 BLLR 1389 (LAC) to the effect that a certificate of outcome remains valid as long as it has not been set aside and will confer jurisdiction to arbitrate even if referral to conciliation had been late and had not been condoned. It remains to be seen whether the Labour Appeal Court’s different conclusion in the present matter will be the last word on the subject.

2. 

   GilesFiles on August 6, 2015 at 9:40 am

   Reported with headnote
   [2015] 9 BLLR 894; [2015] JOL 33480 (LAC)
   Dispute resolution – Time frames – Employee waiting a year for dispute to be certified unresolved, then referring dispute for arbitration – Referral out of time because 90-day period for referral of dispute for arbitration commencing 30 days after referral for conciliation.