It does happen that Employers find themselves being requested to attend the Commission for Conciliation, Mediation and Arbitration (CCMA) for a case but are unable to do so. This could be for many reasons, and as a result, Employers can request that their case be postponed to a more suitable date and time. Although the CCMA is a creature of statute and operates within set rules and guidelines, postponements will not automatically be granted just due to the unavailability of either party.
Rule 23 of the CCMA Rules states that:
An Arbitration may be postponed –
- By written agreement between the parties; or
- By application and on notice to the other parties regarding sub-rule (3).
- The Commission must postpone an Arbitration without the parties appearing if –
- All the parties to the dispute agree in writing to the postponement; and
- The Commission receives the written agreement for the postponement at least seven (7) days before the scheduled date of the Arbitration.
If the conditions of sub-rule (2) are not met, any party may apply in terms of Rule 31 to postpone an Arbitration by delivering an application to the other parties to the dispute and filing a copy with the Commission before the scheduled date of the Arbitration.
After considering the written application, the Commission may –
- without convening a hearing, postpone the matter; or
- convene a hearing to determine whether to postpone the matter.
On 21 April 2023, the CCMA Rules were amended. Rule 23 regarding postponements mirrors the previous Rules relating to Postponement Applications. One significant difference is the inclusion of Rule 23(5), which stipulates that “there is no right to postponement and Arbitration will proceed as scheduled unless the Commission or Commissioner notifies the parties that the matter has been postponed.”
For the benefit of our Members, CEO always recommend trying to avoid unnecessary Postponement Applications as far as possible. Furthermore, where an application for postponement is necessary and has been made, Employers should still be prepared to proceed with the Arbitration with any available witnesses unless they have received a clear indication from the CCMA or the CEO Dispute Resolution Official that the case has, in fact, been postponed.
As soon as any Employer receives a notice of set down, it is advised to check the availability of all witnesses and persons required for the case in advance to avoid urgent Postponement Applications, which may be out of time in terms of Rule 23. If an Employer intends to apply for postponement, such an application must be made at least fourteen (14) days before the Arbitration date, in terms of the Rules. It is further advised always to attempt to contact the opposing parties and try to agree to the postponement well in advance, for which such an agreement should be filed upon the CCMA at least seven (7) days before the Arbitration date.
Written by Tammy Barnard – Senior Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)