Who determines the nature of a dispute in arbitration proceedings? Is it up to the commissioner to decide on whether or not the real dispute falls within its jurisdiction?

The case of Ngobe v J.P Morgan Chase Bank and Others [2015] ZALCJHB 317 provides us with some direction in this regard.

The Ngobe case involved an employee who applied to the Labour Court to review and set aside the arbitration award made by a commissioner of the Commission for Conciliation, Mediation and Arbitration (CCMA). She based her review application on the allegation that the CCMA did not have jurisdiction to hear the dispute because it was an automatically unfair dismissal based on the employee’s pregnancy.

The facts addressed in the arbitration award were the following: the respondent employer underwent restructuring and invited the employee in the matter to apply for a new position. Her application was unsuccessful and she was consequently retrenched.

The pre-arbitration minute set out the common cause facts, the facts in dispute, and the legal issues to be decided by the commissioner. The minute also specifically stated that there were no preliminary points to be determined. The commissioner was only to determine whether the dismissal was procedurally and substantively fair.

Upon considering the review, the Labour Court took the following into consideration:

(i)  the employee was dominus litis in the CCMA;

(ii)  the employee was assisted by her attorney throughout the proceedings;

(iii) the employee failed to raise any jurisdictional issues before or during
            the course of the arbitration; and

(iv) the employee agreed in the pre-arbitration minute that there were no preliminary points to be determined. The commissioner even confirmed, before evidence was led, that the matter before her was one of retrenchment.

The record disclosed that the employee pursued the dispute concerning her dismissal on the grounds of operational requirements throughout and even when the commissioner raised evidence relating to her pregnancy, giving an opportunity to raise a jurisdictional challenge, she did not do so.

The court held that the employee chose to rely on a particular course of action which was capable of being determined by the CCMA and she remained bound by that election. Furthermore, there is a trend in the CCMA for commissioners to intervene and halt proceedings where they form the view that they have no jurisdiction on the basis that the real dispute between the parties concerns a reason that is listed as automatically unfair.

The court held that a party referring a dispute must stand or fall on the merits of that dispute. Where the parties make a conscious decision 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 and dictate to parties what their real dispute is and how it should be litigated.

Employers should therefore always hold an employee to their initial dispute and merits, and get on record what the nature of the dispute really is. The pre-arbitration minute is important as it acts as evidence of the true nature of a dispute.

Written by Lauren Salt, senior associate, employment practice area, Cliffe Dekker Hofmeyr

This article forms part of Employment Alert - 12 October 2015