The dismissal of a matter in accordance with section 138(5)(a) of the Labour Relations Act 66 of 1995 (LRA) does not qualify as a ruling and, as a result, cannot be subject to rescission.

Mfingwana v Commission for Concialiation, Mediation and Arbitration and Others (PR226/21) [2023] ZALCPE 11 (19 June 2023)

Case summary

The review application was based on facts that are largely undisputed. In April 2017, the applicant began working for the Eastern Cape Development Corporation (ECDC) as the Head of the Property Division. However, she was dismissed on September 27, 2019. In response, she lodged a complaint of unfair dismissal with the Commission for Conciliation, Mediation, and Arbitration (CCMA). When the dispute could not be resolved through conciliation, it was scheduled for arbitration on January 13, 2022. The applicant did not attend the arbitration hearing nor was she represented. As a result, the CCMA issued a ruling dismissing her referral in accordance with section 138(5)(a) of the LRA. In an effort to revive her referral, the applicant submitted an application to have the dismissal ruling rescinded. However, in a ruling dated September 16, 2021, the commissioner rejected the application and instructed the Commission to close the case file.

Mfingwana , the applicant launched this review application in terms of section 145(1) of the Labour Relations Act (LRA). She alleges that the conduct of the second respondent (CCMA) dismissing her rescission application constituted a gross irregularity.

The review application is centered around irregularities committed by the commissioner during the arbitration process. According to the applicant’s documents, the ECDC argued that the review application is incompetent and sought to have the rescission ruling to be declared null and void. The applicant persisted in rejecting the claim that the rescission ruling is null and void, citing the ECDC’s failure to provide a basis for their argument. The applicant did not provide any legal authorities to support their position, while the ECDC cited relevant authorities that the court found to be correct. One of the authorities cited is the case of Glencore Operations SA (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others, which established that when a commissioner dismisses a referral under section 138(5)(a) of the LRA due to the non-appearance or representation of the referring party, it is considered a statutory function. As such, the dismissal does not fall under the definition of a ruling or award as outlined in section 144 of the LRA, as it is not a decision based on the merits of the referral. To have her unfair dismissal dispute heard after its dismissal, the applicant was required to re-refer it to arbitration so that it could be assessed based on its merits.

In order for a commissioner to utilize the power of rescission outlined in section 144 of the LRA, there must first be an existing ruling or award. This ruling or award serves as a jurisdictional requirement for the exercise of such power. As the dismissal decision that prompted the rescission application does not qualify as a ruling, the commissioner lacked the jurisdiction to exercise the power of rescission. Any decision made without proper jurisdiction is considered null and void. The review application is founded upon a null and void decision. Consequently, an order reviewing a null and void decision is not valid. Therefore, the review application was dismissed.

Issued by Labour Guide