R Booysen v the South African Police Service and the Minister of Safety and Security case number C60/08 (as yet unreported).
Employers often approach their attorneys after the conciliation process has taken place. In light of recent case authority, employers may be required to seek legal advice prior to the conciliation hearing if they intend challenging the CCMA's power to conciliate or arbitrate a dispute.
In the event that the matter is not resolved at the conciliation hearing and the conciliator issues a certificate of non-resolution, the employer would approach the attorney with the view of soliciting assistance for the arbitration hearing.
Is the employer entitled to challenge the CCMA's power to arbitrate the dispute once a certificate of non-resolution is issued?
In answering this question regard must be had to the Labour Appeal Court (LAC) case of Fidelity Guard v Epstein NO and Others  12 1389. In this case the employer challenged the jurisdiction of the CCMA at arbitration, on the grounds that the employee failed to apply for condonation for the late filing of their referral to conciliation. The LAC held that the employer may not challenge the power of the CCMA to arbitrate the dispute on the basis that the referral was late unless the certificate of outcome issued by the conciliating commissioner is set aside on review by the Court.
In Seeff Residential Properties v Commissioner Mbhele NO and Others  JOL 17555 (LC), the Labour Court (the Court) held that an arbitrating commissioner is entitled to determine whether the CCMA has jurisdiction afresh at the arbitration hearing notwithstanding that the issue was not dealt with at conciliation. However, this case did not deal with the power of the CCMA to arbitrate a dispute if the employee failed to apply for condonation for the late filing of their referral to conciliation
In summary the legal principles in respect of the ability to challenge the CCMA's power to arbitrate disputes were:
- The CCMA may arbitrate a dispute if the referral to conciliation is filed after 30 days has elapsed from the date of the dismissal if the employer fails to challenge the CCMA's power to adjudicate the dispute during the conciliation hearing or the employer fails to set aside the certificate of outcome issued by the CCMA pursuant to the conciliation hearing.
- An employer may challenge the CCMA's power to arbitrate a dispute afresh even if the employer failed to raise the issue during conciliation or raised the issue during conciliation and lost. However, the employer may only do so if the challenge is not based on the failure by the employee to apply for condonation for the late filing of their referral to conciliation.
The case of EOH Abantu (Pty) Ltd v CCMA and Another  7 BLLR 651 (LC) has changed the law. The Court held that an employer may not raise any jurisdictional point at arbitration if the employer has failed to set aside the certificate of outcome at the Court. The Court held that an employer may challenge the CCMA's power to arbitrate the dispute even if a certificate of outcome was issued only under the following circumstances:
- if the employer was unaware during the conciliation hearing that the CCMA did not have jurisdiction to conciliate the dispute; or
- the employer failed to attend the conciliation hearing.
If the above two grounds are absent, the employer may not challenge the CCMA's power to arbitrate the dispute unless it sets aside on review the certificate of outcome issued only by the conciliating commissioner.
Employers are required to therefore determine at a much earlier stage of the proceedings whether the CCMA indeed has the power to adjudicate a dispute lodged by an employee.