1. PURPOSE:
- The purpose of this Directive is to direct how matters relating to section 138(5)(a) of the Labour Relations Act 66 of 1995 (LRA), read with CCMA Rule1 30, are to be dealt with by commissioners and the
2. CONTEXTUAL BACKGROUND:
- The contextual background to this matter was previously dealt with under the Directive on the Determination of Dismissals under section 138(5)(a) of the LRA of 5 October 2021, and the subsequent amendments to CCMA Rules 30 and 32(2) and the inclusion of a new Rule 31C as published in Government Gazette 48445 of 21 April
- The Directive and subsequent amendments to the CCMA Rules referred to in sub-paragraph 1 above, arose from the interpretation and application of the judgment of the Labour Court in Solomons v Food Lovers Market, Kempton Park handed down by Justice Moshoana on 02 August 2021.
- In short, the Labour Court in Solomons v Food Lovers Market, Kempton Park provided that a decision taken by a commissioner in terms of section 138(5)(a) – the dismissal of a matter due to non- attendance of an arbitration hearing by the referring party – is an administrative act and should not be dealt with as a ruling. Justice Moshoana found that a commissioner may not dismiss such a matter, but instead, may make an administrative decision to ‘remove the matter from the roll.’ In the circumstances, it was held that an applicant may request that the matter be re-enrolled, and rescission in terms of section 144 of the LRA would not apply.
- In the Labour Appeal Court (LAC) judgment of Mohube v CCMA & Others (JA18/2022), delivered on 18 May 2023, the LAC rejected the interpretation of section 138(5)(a) per Solomons v Food Lovers Market, Kempton Park. The LAC created new practice and procedures that must be adopted by parties and the CCMA in their application of section 138(5)(a) of the LRA and CCMA Rule
- Based on the findings of the LAC, I therefore issue the Directive set out
3. DIRECTIVE
- The CCMA Directive on the Determination of Dismissals under section 138(5)(a) of the LRA of 5 October 2021 is repealed with immediate
- That commissioners have the power to dismiss matters in terms of section 138(5)(a) of the LRA. However, as per the LAC, commissioners are directed to utilise this power as a last
- In cases where a dismissal has been ruled, parties have a right to apply to have the ruling rescinded in terms of section 144 of the LRA read with CCMA Rule
- A ruling issued in terms of Rule 30 is a ruling contemplated in terms of section 144 of the
- The CCMA will issue Guidelines within seven (7) working days of the date of this Directive on what factors may be considered when exercising the power to dismiss and on how to deal with matters that are pending in terms of the CCMA Directive on the Determination of Dismissals under section 138(5)(a) of the LRA of 5 October 2021 and Rules 30(1)(a) and (b), and
4. This directive is with immediate
Cameron Sello Morajane
CCMA DIRECTOR
