The Labour Court reviewed and set aside a CCMA ruling regarding lack of jurisdiction and applied the ‘correctness’ test.  The employee’s trade union representative suggested in an initial arbitration that the reason for the dismissal of the employee was related to trade union membership but the employee clearly stated that his cause of action is based on dismissal related to conduct.   Because of that initial suggestion the matter was struck from the CCMA roll.  When the employee tried to re-enrol the ‘real’ dispute for arbitration the CCMA ruled that it was res judicata.  That ruling has been set aside and the matter remitted to the CCMA.

Mashego v Cellier NO (SAA) (JR2721/13) [2015] ZALCJHB 415 (26 November 2015) per Steenkamp J

Excerpts [footnotes omitted]

Context: The LRA, its aims and objectives

[15] The Constitution guarantees the right to fair labour practices.  The LRA gives effect to those rights.  One of its primary objects is to promote the effective resolution of labour disputes.  In order to be effective, dispute resolution should be speedy.  And both time and legal costs should be minimised.  In National Education Health and Allied Workers Union v UCT the Constitutional Court recognised this principle and said:

“By their nature labour disputes must be resolved expeditiously and be brought to finality so that the parties can organise their affairs accordingly.  They affect our economy and labour peace.  It is in the public interest that labour disputes be resolved speedily.  .  .”

[16] As the learned authors in Labour Relations Law: a Comprehensive Guide point out, the drafters of the LRA intended that disputes be resolved quickly.  The Explanatory Memorandum noted that the brief of the task team drafting the LRA was, amongst other things, to “provide simple procedures for the resolution of disputes through statutory conciliation, mediation and arbitration”.  It was meant to adopt “a simple non-technical and non-jurisdictional approach the dispute resolution”.  By providing for the determination of dismissal disputes by final and binding arbitration, the act adopted “a simple, quick, cheap and non-legalistic approach to the adjudication of unfair dismissal.”

[17] None of these objects have been met in this case.

.  .  .  .  .

The second ruling: res judicata?

[21] A ruling that the dispute should be struck from the roll is not final in effect.  The arbitrator committed an error of law when he ruled that the dispute was res judicata.  That led to an unreasonable result depriving the employee of having the real dispute – unfair dismissal based on misconduct – arbitrated before the CCMA, which is the forum with jurisdiction to hear that dispute.

[22] The Labour Appeal Court has confirmed that the functus officio doctrine – closely aligned to that of res judicata – does apply to CCMA commissioners.  But it only applies when they have made a ruling that is final in effect.  In PT Operational Services Musi AJA stressed that “it is only after an administrative agency has finally performed all its statutory duties or functions in relation to a particular matter which is subject to its jurisdiction that it can be said that its powers or functions was spent by its first exercise.” In that case, he expressed the view that it was unfortunate that commissioner Cellier – the same commissioner as the first respondent in this case – dismissed the application before him instead of striking it from the roll.  He continued: “I have seen many rulings of a technical or formalistic nature where the correct order ought to be striking a matter from the roll but the matter would be dismissed instead.” Perhaps taking that admonition to heart, Commissioner Cellier in this case did strike the matter from the roll instead of dismissing it.  For that reason, it was not res judicata.  In the context of a matter being struck from the roll for lack of urgency, Musi AJA cited with approval the following dictum by Cameron JA (as he then was) in Hawker Air Services:

.  .  .  .  .


[25] In this case, the Commissioner struck the matter from the roll when he made his first ruling.  He did not dismiss the dispute on the merits.  The dispute was not res judicata.  When he ruled that it was, after the employee had applied for the real dispute to be re-enrolled, he committed an error of law.  That led to not only an incorrect finding, but also an unreasonable result that must be reviewed and set aside.  The real dispute must be remitted to the CCMA for arbitration before another Commissioner.