In a recent landmark ruling by the Labour Court in the case of Valinor Trading 133 CC t/a Kings Castle v The CCMA and Others (JR292/19) [2023] ZALCJHB 10 (3 February 2023), the court definitively addressed a crucial question with a resounding “no.”

The crux of the matter involved the termination of an agreement between an individual and a company, leading to the referral of an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). Subsequently, the dispute proceeded to conciliation/arbitration (con/arb). However, the company raised a timely objection, citing section 191(5A)(c) of the Labour Relations Act 66 of 1995 (LRA) and expressing disapproval of an immediate transition to arbitration following conciliation.

Despite the objection being delivered later than stipulated by CCMA rules, the commissioner proceeded with arbitration and issued a default arbitration award. The company, dissatisfied with this outcome, applied for the rescission of the default award, a request that the commissioner dismissed. Additional technicalities surrounding the rescission application and a subsequent request are outside the scope of this article and will not be discussed herein.

The court’s pivotal ruling established that, regardless of the timing of an objection under section 191(5A)(c) of the LRA, a commissioner lacks the authority to proceed with arbitration or disregard the objection. In the event of such disregard, any ensuing decision is rendered null and void. Notably, the relevant LRA section does not prescribe a specific time frame for objections, allowing commissioners discretionary powers to condone non-compliance with CCMA rules’ time periods, aligning with the overarching objectives of the LRA as outlined in Rule 35.

In its interpretation of CCMA rules, the court emphasized that the rules, including Rule 17 suggesting a seven-day time period, do not inherently declare an objection null and void if received late. Any interpretation to the contrary would create a conflict between the LRA and CCMA rules. In such conflicts, the LRA takes precedence, echoing the Labour Appeal Court’s position that CCMA rules cannot undermine substantive rights conferred by the Act.

In essence, the court clarified that a notice of objection delivered less than seven days prior to the set-down date for con/arb does not render the objection defective to the extent that it can be ignored or deemed invalid. Any interpretation conflicting with the LRA is untenable, and the objection remains valid, irrespective of adherence to the time periods specified in CCMA rules.

In conclusion, the court underscored that the commissioner lacked the authority to dismiss the company’s objection, and consequently, was unauthorized to proceed with arbitration. Consequently, the default arbitration award was deemed erroneous, prompting the court to grant the rescission application and set aside the default arbitration award. This landmark decision reinforces the importance of procedural integrity in employment disputes and upholds the primacy of statutory rights over procedural rules.

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