Amended Rules for the Conduct of Proceedings before the Commission for Conciliation, Mediation and Arbitration (CCMA) (“the Rules”) were promulgated on 17 March 2015 and came into effect on 1 April 2015. New ‘Guidelines on Misconduct Arbitrations’ on how commissioners must deal with misconduct arbitrations have also been issued with effect from 1 April 2015, but these will be dealt with in a separate newsletter.
Some of the more noteworthy amendments to the Rules are discussed briefly below.
Serving and filing documents by email and SMS, and registered mail notifications
Service and filing of documents may now be effected by way of email. The relevant provisions of the Electronic Communications and Transactions Act, 2002 are, however, applicable in respect of any issues that may arise in relation to service by email.
In addition, the CCMA may now provide notification to parties in any manner prescribed in relation to the service of documents (eg by email) and, further, it may provide notice to parties by way of short message service (SMS). The CCMA has been doing this for some time, but this has now been formalised as a valid form of notification.
The Rules also state that, in relation to the 14-day and 21-day periods applicable in order to notify parties of conciliation and arbitration proceedings respectively, in instances in which notice of proceedings is sent by way of registered mail, an additional seven days must be allowed.
Disputes can no longer be dismissed where the referring party fails to attend conciliation
The requirement that parties must attend conciliations in person has been removed from Rule 13, as well as the reference to dismissal of the dispute in an instance in which the referring party fails to attend the conciliation proceedings. The “dismissal” provision has now been replaced with the words “conclude the proceedings by issuing a certificate that the dispute remains unresolved”.
Proof of jurisdiction
Rule 14 now provides that a conciliating commissioner must require a referring party to prove that the CCMA has jurisdiction in an instance in which a jurisdictional issue has not been determined, provided that all jurisdictional issues requiring evidence may be deferred to arbitration. Strictly speaking, all jurisdictional issues require evidence, but it seems likely that in instances where the evidence is not common cause and oral evidence is required that it will be deferred to arbitration.
Non-compliance with a directive to file statements
Rule 19(3) now provides commissioners with a discretion to continue with a matter despite non-compliance with the CCMA or a commissioner’s directive that the parties file statements. However, a party’s non-compliance may be taken into account when considering costs at the conclusion of an arbitration hearing.
Representation at the CCMA
Rule 25, which deals with representation before the CCMA, has been amended to separately spell out the rights of representation for employers, unions and employers’ organisations. Representation by an office bearer, official or member of a trade union remains permitted in instances in which the party is a registered trade union, although the rules now provide expressly that such representatives must have been authorised to represent the union. Representation by an office bearer or official or a director or employee of an employer that is a member of the employer’s organisation is permitted for employers’ organisations (although see the new qualification to this below).
Representation by a legal practitioner at arbitration continues to be permissible, subject to the same qualification relating to misconduct and incapacity dismissal arbitrations, but the new rules now preclude any person other than a legal practitioner from charging a fee or from receiving any financial benefit for agreeing to represent a party to proceedings before the CCMA.
A new, fairly widely framed power has been given to commissioners to exclude the rights of members of an employer’s organisation to represent each other. Such representation can now be precluded where a commissioner believes that the representative joined the employer’s organisation for the purposes of representing parties at the CCMA or where the representative’s participation would be contrary to the purpose of the rule (which is stated as being to promote inexpensive and expeditious dispute resolution in a manner that is equitable to all parties); or is not in keeping with the objectives of the Labour Relations Act, 1995; or may have the effect of unfairly disadvantaging another party to the dispute. This amendment appears to be aimed at, among other things, labour consultants and the like who join employers’ organisations simply to acquire rights (that they otherwise would not have) to represent employers at the CCMA, but the ambit of the rule goes wider than this and introduces an inquiry into the relative disadvantage to the other party to the dispute of allowing such representation. This may well give rise to litigation that tests the validity and boundaries of these restrictions.
Making applications relating to preliminary issues
Significant amendments have been made in relation to the filing of documents in applications in terms of Rule 31 (which relates to issues of condonation, joinder, rescission, postponement, jurisdiction and the like). Any party wishing to bring such an application is now required to bring that application 14 days prior to the date of a hearing. A notice of opposition and answering affidavits must then be served and filed within five days after receipt of the application and a replying affidavit must be served and filed within three days from the day on which any notice of opposition and answering affidavit is served on the applicant in an application.
Digital recording now mandatory for the CCMA
Rule 36 now specifically states that a record must be kept by way of digital recording and, if practically possible, legible notes must be kept, whereas previously a digital recording was not mandatory. This will serve to alleviate issues that arise in review proceedings where no recording is available for the purposes of filing a record relevant to the review of arbitration awards, and the parties have to try and reconstruct the record.
Rule 37A has been inserted to deal with expert witnesses. It requires a party who wishes to call an expert witness to give seven days’ notice prior to the hearing to the CCMA and the other party, together with a summary of the evidence of the proposed witness, any document that will be relied on and the basis on which the witness is regarded as an expert. This is designed to enable the other party to consider the summary and minimise the need for a postponement in order to deal with expert evidence.
Costs in arbitration proceedings
An extensive new Rule 39 deals with costs orders in arbitration proceedings and stipulates factors to which a commissioner must have regard when making an order for costs.
In addition, the rule prescribes that commissioners may order costs in respect of reasonable disbursements incurred where one party is represented by a legal practitioner, and in relation to legal fees where both parties are represented by a legal practitioner. However, this is limited to R6 000 for the first day of the arbitration proceedings and R4 000 in respect of each additional day of an arbitration.
Certification of awards
Rule 40, dealing with the certification of arbitration awards, has also been amended. In terms of the amendment, any arbitration award that has been certified and which orders payment of an amount of money may be enforced by execution against property of an employer by the sheriff of the court in the magisterial district where the employer party resides or conducts business and, where the award orders the performance of an act, by way of contempt proceedings in the Labour Court. This removes the need for a warrant of execution to be issued out of the Labour Court or the High Court.