There are hard cases and there

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1 Contemporary Labour Law Vol. 20 No. 12 July 2011 Postponements in arbitration proceedings at the CCMA Delaying the inevitable by Carl Mischke Managing Editor: P.A.K. Le Roux Contributing Editor: Carl Mischke Hon.Consulting Editor: A.A.Landman Published by Gavin Brown & Associates Box Tokai 7966 Tel: There are hard cases and there are easy cases. In the context of the CCMA, there are cases that fall out of the system well before the CCMA has lavished too much time and attention on them. They include applications that clearly fall outside the scope of the CCMA s jurisdiction, disputes that are withdrawn before arbitration proceedings (or even before conciliation proceedings) and matters that are dismissed in terms of s 138(5) of the Labour Relations Act of 1995 (the LRA). Some cases pass through the CCMA s system without much ado con/arb proceedings, especially in simpler cases, may be dealt with in the course of a few hours, assuming, of course, that the respondent does not object to an immediate arbitration of the dispute.unfortunately, it does seem that most respondent employers now object to the arbitration proceedings being hitched onto the conciliation stage as they are entitled to do in terms of s 191(5A)(c). But there are cases that seem to get stuck in the CCMA s system, cases that seemingly endlessly churn through the system, requiring the CCMA to re-work and re-process such a case for a considerable period of time and in some cases this can in fact be a matter of years. The biggest challenges facing the CCMA, and especially some regions, are the large numbers of postponements and adjournments granted by CCMA commissioners during the course of proceedings. And some cases may be beset with such procedural difficulties and practical problems that they appear to be stuck in the CCMA s system almost indefinitely. As easy as it may be to identify postponements as being a challenge an even greater challenge lies in fashioning an appropriate response. When should a commissioner grant a postponement; under what circumstances should a commissioner decline the request of one party (or a request by both parties, for that matter) and simply proceed with the matter? The difficulties are compounded in this respect by the fact that the issue of adjournments and postponements Inside... The changing meaning of a benefit p119 Page 111

2 arise under a vast number of different circumstances, making it almost impossible to formulate a one-sizefits-all solution or to formulate a strict (or even less than strict) rule to guide commissioners. Old lawyers, new lawyers A recent Labour Court decision focusing on the issue of postponements has cast some light on the matter. In Moshela v CCMA & others (JR1524/06 of 1 July 2011). The employee referred an unfair dismissal dispute to the CCMA and an award was issued in May The employee, unhappy with the award, sought to have the award reviewed and set aside, demanding that his dismissal be found substantively unfair, that he receive the maximum amount of compensation and that he be reinstated. In the alternative, the employee wanted the Labour Court to have the matter sent back to the CCMA to be heard afresh by another commissioner. The matter then got stuck in the Labour Court: in May 2008 the employee s application was dismissed by the Labour Court. More than a year later, in July 2009, the Labour Court rescinded its own order and the employee was given an opportunity to give more reasons for having the original award, now three years old, reviewed and set aside. The employer opposed the second Labour Court matter on procedural grounds and the Labour Court refused leave to appeal. And so the original review application eventually came before the Labour Court. The employee, an export controller employed by a courier company, oversaw the documentation for a shipment to be exported to Hong Kong by one of the courier company s clients. A manager s suspicions were aroused by the shipment one reason being that the employee allegedly changed the client s account from a credit account to a cash account. The employee had also arranged for the shipment to be re-routed, using a different airline. The suspicious manager issued instructions for the shipment to be returned to South Africa it transpired that the shipment in question contained an illegal consignment of abalone (perlemoen). The employee was charged with a number of offences, including gross dishonesty, and dismissed after a disciplinary enquiry in March Not only was the CCMA commissioner s award in favour of the employer, but he also concluded that the referral of the dispute was frivolous and vexatious and therefore ordered costs against the employee on an attorney-own client scale. The award was taken on review for a totally different reason: the CCMA commissioner had refused to grant the employee the postponement he had requested. The reason offered for the request was that the employee s legal representative had not formally withdrawn from the case this meant that the employee s new representative could not proceed with the matter on the relevant date. The CCMA commissioner took a commendable hard line, informing the employee that he would order double costs against the applicant if he persisted with his demand for a postponement and that the case would only be heard if these costs had been paid in full. Again, correctly, the commissioner then referred the employee to rule 23 of the CCMA rules, which sets out the procedures parties must follow to postpone an arbitration. Rule 23 provides that an arbitration may be postponed by agreement between the parties; the parties do not need to appear, and if the written agreement for the postponement is received more than seven days before the scheduled date, the CCMA is obliged to postpone the proceedings. The commissioner offered the employee a number of choices: to continue with his existing legal representative for the day and hand over to his new representative should a third day have been necessary, was one. The other was for the employee to continue without any representation whatsoever and this is the option the employee then exercised. It was this refusal on the part of the commissioner to postpone the proceedings, and thereby effectively compelling the employee to proceed, that formed the basis of the review proceedings. The Labour Court held that the issue of the refusal to grant a postponement should be considered objectively. The test is whether any party will suffer prejudice if granted or refused. The Labour Court then relied on the following passage from the Constitutional Court s judgment in National Police Service Union & others v Minister of Safety and Security & others 2000 (4) SA 1110 (CC) at 1112F: Page 112

3 The postponement of a matter set down for hearing on a particular date cannot be claimed as of right. An applicant for a postponement seeks an indulgence from the Court. Such postponement will not be granted unless this Court is satisfied that it is in the interests of justice to do so. In this respect the applicant must show that there is good cause for the postponement. In order to satisfy the Court that good cause does exist, it will be necessary to furnish a full and satisfactory explanation of the circumstances that give rise to the application. Whether a postponement will be granted is therefore in the discretion of the Court and cannot be secured by mere agreement between the parties. In exercising that discretion this Court will take into account a number of factors, including (but not limited to): whether the application has been timeously made, whether the explanation given by the applicant for postponement is full and satisfactory, whether there is prejudice to any of the parties and whether the application is opposed. Returning to the facts of the case, the Labour Court found that the employee knew two weeks before the arbitration that he intended to dismiss his legal representative and instruct another to take over. At the time of the arbitration, his first legal representative was his attorney of record and the new representative was engaged on another case. It was not enough for the employee to rely on the fact that he was a layperson and could not have known that applications for postponement were to be made more than seven days before the arbitration is scheduled to start. He had the benefit of not one, but two legal representatives who could have advised him as to the correct procedure to follow. The employee s application for a postponement was opposed by the employer and they indicated that they would demand costs if he persisted with his application for a postponement he then decided to continue without legal representation. The heads of argument the employee submitted did not show what prejudice was caused by the commissioner s refusal to grant a postponement; none was argued before the Labour Court. The Labour Court then concluded that the commissioner s conduct was not reviewable on the ground of his refusal to grant a postponement. Most, if not all CCMA commissioners would probably take the same decision on the facts of this case. But again, this is a relatively straightforward case and it is clear that the employee had ample time to sort out the issues of legal representation and deal with the technicalities of rule 23 well before the arbitration was due to start. But matters may be a great deal more complex, and CCMA commissioners will usually be expected to take these decisions in a few minutes, or on the spot. What happens, for instance, if an applicant, returning to arbitration proceedings that had been postponed (in terms of rule 23) once before, appears with a legal representative and the legal representative reaches an agreement with the respondent that there are possibilities for a settlement to be explored? Should the commissioner grant a postponement and give the parties the opportunity to explore the common ground they may have and perhaps reach a settlement of the dispute? Or should the commissioner simply refuse to contemplate a further postponement and continue with the matter, despite the fact that both parties have indicated a willingness and an interest in exploring an amicable settlement? Clearly, there can be no hard and fast rule in this context yet at the very least what the commissioner must do in a case such as this is to try and determine whether there is a real prospect of a settlement or whether the applicant (or even both parties) are using the prospect of a settlement as another way of securing yet another postponement. Obviously, there are cases in which a postponement is requested for bona fide reasons; but there are also those cases where a party may request a postponement, or even a number of postponements, of arbitration proceedings intending simply to delay the proceedings, to make matters difficult for the other party or in an attempt to wear down the other party into agreeing to a settlement. A need for a postponement may be real or it may simply be a tactical move, and the difficulty lies in distinguishing between the two. This issue was briefly mentioned in Masstores (Pty) Ltd t/a Builders Warehouse v CCMA & others [2006] 6 BLLR 577 (LC) at [41]. While it is tempting to point to legal representatives as using these Page 113

4 "There are at least three reasons why the approach to applications for postponements in arbitration proceedings under the auspices of the commission under the LRA is not necessarily on a par with that in courts of law. The first is that arbitration proceedings must be structured to deal with a dispute fairly and quickly (s 138(1)). Secondly, it must be done with the minimum of legal formalities (s 138(1)). And thirdly, the possibility of making costs orders to counter prejudice in good faith postponement applications is severely restricted (s 138(10)). Carephone (Pty) Ltd v Marcus NO & others delaying tactics, no-one should be under any illusions that unrepresented employers and employees are not above requesting postponements for their own perceived tactical benefit. Guidance from the Courts One of the best-known decisions focusing on the refusal of a CCMA commissioner to grant a postponement is Carephone (Pty) Ltd v Marcus NO & others (1998) 19 ILJ 1425 (LAC). At the start of arbitration proceedings relating to an unfair dismissal dispute, the CCMA commissioner refused to grant the employer a postponement simply because the partner in the law firm that had been dealing with the matter was facing personal issues and was therefore not available. Because there was no explanation of the steps the employer had taken in the five days before the arbitration and that the preparations for the arbitration proceedings could have begun much earlier, the CCMA commissioner refused to grant an application. The employer sought to review this decision. The Labour Appeal Court reiterated that in a court of law the granting of a postponement is not a matter of right, it is an indulgence to a party before the court and it requires the exercise of a judicial discretion. The Labour Appeal Court also stressed the need for a reasonable explanation for the need to postpone. But there is a considerable difference between postponements in legal proceedings before a court of law and before the CCMA: [55] There are at least three reasons why the approach to applications for postponements in arbitration proceedings under the auspices of the commission under the LRA is not necessarily on a par with that in courts of law. The first is that arbitration proceedings must be structured to deal with a dispute fairly and quickly (s 138(1)). Secondly, it must be done with the minimum of legal formalities (s 138(1)). And thirdly, the possibility of making costs orders to counter prejudice in good faith postponement applications is severely restricted (s 138(10)). What weighed heavily in this decision was that the commissioner had come to a reasonable conclusion based on the evidence before him and he also considered the prejudice that would follow for both parties if he refused to grant a postponement. The commissioner also took into account that a costs order would not be an appropriate remedy to address the prejudice suffered. For the Labour Appeal Court, the commissioner s refusal to grant the postponement made sense and there was no reason to review his decision. The issue of postponements has also been dealt with in a number of Labour Court decisions. In Insurance & Banking Staff Association & others v SA Mutual Life Assurance Society (2000) 21 ILJ 386 (LC) at 394F-395 the Labour Court provided the following list of relevant considerations when it comes to considering a request for a postponement: (a) The trial judge has a discretion as to whether an application for postponement should be granted or refused. (b) That discretion must at all times be exercised judicially. It should not be exercised capriciously or upon any wrong principle, but for substantial reasons (c) The trial judge must reach a decision after properly directing his/her attention to all Page 114

5 relevant facts and principles. (d) An application for postponement must be made timeously, as soon as the circumstances which might justify an application become known to the applicant. However, in cases where fundamental fairness and justice justify a postponement, the court may in an appropriate case allow such an application for postponement, even though the application was not timeously made. (e) The application for postponement must always be bona fide and not used simply as a tactical manoeuvre for the purpose of obtaining an advantage to which the applicant is not legitimately entitled. (f) Considerations of prejudice will ordinarily constitute the dominant component of the total structure in terms of which the discretion of a Court will be exercised. What the court has primarily to consider is whether any prejudice caused by a postponement to the adversary of the applicant for a postponement can fairly be compensated by an appropriate order of costs or any other ancillary mechanisms. (Herbstein & Van Winsen The Civil Practice of Superior Court in SA (3 ed) at 453.) (g) The Court should weigh the prejudice which will be caused to the respondent in such an application if the postponement is granted against the prejudice which will be caused to the Applicant if it is not. (h) Where the applicant for a postponement has not made the application timeously, or is otherwise to blame with respect to the procedure which the applicant has followed, but justice nevertheless justifies a postponement in the particular circumstances of a case, the court in its direction might allow the postponement but direct the applicant in a suitable case to pay the wasted costs of the respondent occasioned to such a respondent on a scale of attorney and client. Such an applicant might even be directed to pay the costs of the adversary before the applicant is allowed to proceed with the action or defence in the action, as the case may be. Neither the applicant or the respondent should approach CCMA arbitration proceedings with the assumption that a postponement will be granted. In Vorster v CCMA & others [2002] 11 BLLR 1110 (LC) an applicant, knowing that a postponement had been refused and that the matter was to proceed again, appeared with yet another application for a postponement. As a result of the CCMA commissioner s refusal to grant the postponement, the applicant decided to withdraw. The commissioner s refusal was not, the Court held, reviewable. Generally speaking, a party should not assume that a postponement will indeed be granted even if the other party agrees to it. (see Martin v CCMA & others [2008] 8 BLLR 774 (LC)). Blaming other people One common cause for postponement requests is that a party s witness is not available: time after time a party and/or its representative will appear before a CCMA commissioner only to inform the commissioner that the arbitration proceedings cannot continue because a crucial witness is on leave or is too ill to attend. The issue of the missing witness was dealt with in Mokheseng v Karee Mine (2006) 27 ILJ 1511 (LC). The employee was charged with insubordination and, at the start of the CCMA arbitration, the parties engaged with each other to explore an alternative way of settling the dispute. The proceedings then began with the employer requesting a postponement. Two reasons were given for this request: one witness was on annual leave at the time of the arbitration; this witness was the person who had given the instruction in question and therefore the applicant regarded this witness s evidence as crucial. The other reason offered for the requested proposal was to allow the employer an opportunity to obtain a mandate from senior managers to reinstate the employee. The request for a postponement was turned down and the parties were instructed to proceed with the case. The review application focused on the commissioner s refusal to grant the postponement; it was argued that the commissioner unjustifiably and irrationally rejected important facts and evidence regarding the postponement. Also subject to attack was the commissioner s findings that the reasons given for requesting the postponement were not plausible there was no rational connection, it was argued, between the facts presented to the commissioner and the commissioner s refusing the postponement. Page 115

6 The Labour Court found that the commissioner was correct in finding that the first reason was not plausible. After all, the matter had been conciliated and the employer knew that the employee was challenging the substantive fairness of his dismissal. In respect of the second reason, the absence of the witness, the Labour Court approved of the commissioner s reasoning in this regard. The commissioner realised that he had to look further into the matter he had to consider the substance of the reason given by the applicant. The commissioner asked, for instance, why the employer did not inform the witness that he should make himself available for the CCMA proceedings, even though the witness was on annual leave at the time. After all, the witness still worked for the employer. But the commissioner s reasoning fell short of the standard and the Court found that he had failed to apply his mind to the fact that the employee had taken about one year to refer the dispute to the correct offices of the CCMA. The commissioner also considered the prejudice that would be suffered by the parties if he granted a postponement and found that the employee would suffer more prejudice without giving reasons for reaching this conclusion. The commissioner failed, the Court said, to investigate whether or not there was an order he could have issued to prevent or circumvent the injustice. This constituted a gross irregularity and the award was reviewed and set aside. The problem with prejudice The issue of a party suffering prejudice as a result of a postponement is a key consideration, as the above cases make clear. The cases also show that in the context of formal court proceedings, cost orders can go some way in addressing such prejudice. A cost order will, by its very nature, compensate a party for the costs incurred in having secured the attendance of its legal representatives in court, only to find that the proceedings are postponed. When it comes to CCMA proceedings, however, cost orders, while they remain a possibility, will do little to address the prejudice suffered by an unrepresented employee, for instance, if the arbitration proceedings are postponed for another month for the employee this means another month without an income, another month without having his or her dispute resolved and another delay in finalisation of the dispute. The Labour Court expects a commissioner to investigate the potential prejudice a party may suffer: in the Masstores decision(cited above) the Labour Court expressly states that it is incumbent on the commissioner to investigate the circumstances of such prejudice and to decide whether or not it could be cured by an appropriate order. If a commissioner fails to do so he or she would be relinquishing this important duty of a commissioner and this in turn would constitute a reviewable gross irregularity. Prejudice can come in many guises and it is important to bear in mind that either party may be prejudiced by a commissioner s refusal to grant a postponement. One often-heard reason is that a party (for a wide range of reasons) is not in a position to proceed with the arbitration. As a matter of principle, of course, this type of excuse does not carry much weight when parties are informed of the date and time on which the arbitration proceedings have been set down, they are also informed that they should secure the presence of their witnesses. In other words, parties must anticipate that the proceedings will commence on the first day for which the matter has been set down. At the same time, there may have been issues regarding the communication of the notice of set-down; a party may simply not have received the notice (it may have been sent to the incorrect fax number or posted to the incorrect address) or may not have received the notice in good time. In Rand Water v Bracks NO & others (2007) 28 ILJ 2310 (LC), a decision much discussed in another context, the employer sought a postponement from the commissioner because it claimed that it had not had enough time to prepare for the arbitration: the employer had been trying to establish from the CCMA what the date of set down for the matter was. The day before the arbitration was to commence, the employer s representative was advised by the CCMA that the matter had been set down for the following two days. The employee s representative opposed the request for a postponement because there was proof that the notice had been sent to the employer by registered post, and the employee s representative then indicated that she was happy to agree to a postponement if and only if the employer tendered the employee s wasted Page 116

7 legal costs. To this argument the employer responded that the employee was not entitled to legal representation in the first place she could have dealt with the matter on her own. She had, in other words, placed herself in the position where she incurred legal costs. The employer persisted that it was not ready to proceed with the matter, and also refused to tender costs. The Court found that the commissioner did not doubt the bona fides of the employer s representative and his version of what happened. The only reason why the commissioner refused the request for a postponement was that the employer refused to tender costs. This was not good enough: [23] The mere fact that Rand Water refused to tender the costs was not sufficient justification for the commissioner thereupon to refuse the postponement. Had the commissioner properly applied his mind to considerations of prejudice, he would have been driven to the conclusion that clearly Rand Water would be prejudiced under circumstances where it was not prepared to present its case. On the other hand, equally clearly, the commissioner was able to remove the prejudice suffered by the employee party by ordering Rand Water to pay her costs on an attorney and client scale, or to make the order of costs to the effect that Rand Water pay R9 000 to the employee party in respect of wasted costs as Miss Swart s representative had proposed. Hearing in a hearing In Fundi Projects & Distributors (Pty) Ltd v CCMA & others (2006) 27 ILJ 1136 (LC) the Court stated that applications for postponements are routinely, arbitrarily and misguidedly refused and often this is the result of the commissioner s failing to take a principled approach to the competing interests of the parties. With some justification, commissioners may tend to err on the side of caution when it comes to granting postponements after all, this seems to be the lesser of two evils. CCMA commissioners are only too well aware that a refusal to grant a postponement may well itself lead to review proceedings. Commissioners know only too well that a decision to refuse a postponement may be scrutinised by the Labour Court. One of the challenges in dealing with a request for a postponement is that a consideration of the request, the stated reasons for the request, a consideration whether the request constitutes a tactical move or whether it has been made with an ulterior motive, evaluating the potential prejudice and the interests of securing a prompt finalisation of the dispute (a consideration especially pertinent in the context of unfair dismissal disputes) results in a hearing on its own a hearing that may consume a fair amount of the time set aside for the arbitration proceedings. At the same time, commissioners are generally aware of the fact that there is an institutional concern with finalising cases, that the CCMA has an interest in having arbitration proceedings completed and an award issued. Obviously, it is not in the interests of the CCMA as an institution, or in the interests of the parties, for that matter, to have disputes churning through the CCMA over and over again, resulting in seemingly endless re-working, re-scheduling and other delays in having the case safety seen out of the system. It is unfortunate that commissioners find themselves in the cross-hairs of conflicting considerations: the need to complete a case, on the one hand, and the need to consider any request for a postponement with care and in some considerable detail a process that includes not only eliciting the pertinent facts from the party applying for the postponement (and also the reasons why the other party is only too happy to agree to a postponement), but also the application of the legal guidelines to those facts. Almost invariably, commissioners are expected to make a ruling on an application for a postponement on the spot, with little Contemporary Labour Law is published monthly from August to July of each year. Visit our website at www. workplace.co.za for information and subscription details. Subscription Enquiries : Tel : (021) Fax : (021) workplace.co.za ISSN X Copyright held by the authors. No part of this publication may be reproduced in any form without the prior written consent of the publishers. Page 117

8 "At the very minimum, it is clear that a CCMA commissioner, when responding to a party s request for a postponement, must engage not only with the party requesting the postponement, but also with the other party. The fact that the parties may agree to a postponement may be a relevant factor, but it should carry considerably less weight than the reasons given by the party or parties for the requested postponement." or no time to consider the evidence placed before him or her as regards the requested postponement, the potential prejudice and how this could be remedied, and also determining whether the request for a postponement is yet another tactical manoeuvre used by a party or a legal representative. The question uppermost in the minds of commissioners is simply when to grant a postponement. The two extremes of the spectrum are obvious: either commissioners never grant postponements (and parties are compelled to use the procedure set out in rule 23), or they always grant postponements. Neither of these extremes are feasible, although it does seem tempting to effectively strip commissioners of their discretion to grant postponements and to compel parties to use the rule 23 procedure. It is perhaps unfortunate that the review cases decided by the Labour Court focus solely and exclusively on the commissioner and his or her reasons for refusing a postponement. This focus has a number of consequences. The first is that commissioners are aware of the fact that their refusal of a postponement may itself be subject to scrutiny in the Labour Court. It is, in other words, their handling of the arbitration process itself which is being scrutinised not the outcome of the arbitration process (the award). This means, in turn, that commissioners may well prefer to avoid review proceedings in this regard by simply taking the easy way out by granting a postponement. The second consequence of the cases and the focus placed on the commissioner and his or her reasoning is that it almost entirely eclipses the fact that postponements are not the commissioner s issue postponements are requested by the parties to the arbitration process. The decided cases obscure the fact that the primary responsibility for postponements lies with the parties themselves. It hides the fact that some parties may have valid reasons for requesting a postponement while others may well use postponements as a delaying tactic. A commissioner faced with a request for a postponement is under pressure from two sides: to elicit evidence, analyse the evidence, apply the legal principles and to come to a reasoned conclusion on the one hand. On the other is the pressure to complete arbitration proceedings and to have the dispute settled with some degree of finality (the possibility of review proceedings always hovering over any decision taken by a commissioner). At the very minimum, it is clear that a CCMA commissioner, when responding to a party s request for a postponement, must engage not only with the party requesting the postponement, but also with the other party. The fact that the parties may agree to a postponement may be a relevant factor, but it should carry considerably less weight than the reasons given by the party or parties for the requested postponement. A commissioner is, according to the guidelines gleaned from the cases, obliged to interrogate the evidence presented in support of the request, and to delve deeper, if necessary, to try and get a sense of whether the reasons so proffered by the party or parties are real reasons or whether they are a smokescreen. The real challenge arises, however, when the commissioner is expected to make a ruling in respect of the requested postponement on the spot. In some cases, in some really hard cases, making such a ruling may well be a greater challenge than drawing conclusions on the fairness of a dismissal and drafting an arbitration award accordingly. Carl Mischke Page 118

9 The changing meaning of a benefit : Step by step by Carl Mischke The Labour Relations Act of 1995 (the LRA) offers protection to employees against unfair acts or omissions by their employers involving, amongst others, the provision of benefits. As briefly worded as this provision (and its predecessors) may be, the conceptual difficulties arising in respect of exactly what is encompassed by the term benefit and, just as importantly, what falls outside the ambit of that term has been an unsettled question in our law for a considerable length of time. Perhaps the elusive meaning of this term can be described as the last, stubborn mystery of the LRA as a whole. Repeatedly, the Labour Court and the Labour Appeal Court have sought to grapple, so far, it seems, in vain, with this slippery concept, trying to draw the boundaries between what is, and what is not a benefit. Labour Court decisions dealing with this aspect are relatively few and far between this means that every new decision attracts some attention and commentary all over again. The most recent decision is IMATU obo Verster v Umhlatuze Municipality & others [2011] JOL (LC). It represents not a full overhaul of thinking and conceptualisation of what a benefit is, but it represents an important further step in a gradually developing jurisprudence that is straining at the leash impatient, it seems, to break away from the constraints and narrow interpretation that still hovers like some uneasy yet inescapable ghost. Early decisions set the tone and lay the foundation for the conceptual uncertainties. In Schoeman v Samsung Electronics (Pty) Ltd (1997) 18 ILJ 1098 (LC) and in Gaylard v Telkom SA LTD (1998) 19 ILJ 1624 (LC) the Labour Court distinguished a benefit from remuneration in short, the net effect of these two judgements is that a benefit for the purpose of what is now s 186(2)(a) of the LRA is something other than remuneration. As the Labour Court pointed out in one of its subsequent judgments, the concern here was to narrow the interpretation of a benefit in view of the fact that the statutory dispute resolution procedures for the resolution of a dispute about a benefit is conciliation followed by arbitration, the Court s concern was to keep disputes about remuneration outside the ambit of the unfair labour practice protection. It was the decision of the Labour Appeal Court in HOSPERSA & another v Northern Cape Provincial Administration (2000) 21 ILJ 1066 (LAC) that approached the concept of a benefit from another perspective altogether. The Labour Appeal Court relied on a distinction between disputes over rights and disputes of interests and re-built the concept of a benefit on the basis of this foundation, a foundation, it must be added, that is not mentioned in the LRA itself at all. The Labour Appeal Court said the following: [9] the legislature did not seek to facilitate the creation of an entitlement to a benefit which an employee does not otherwise have. I do not think that item 2(1)(b) was ever intended to be used by an employee who believes that he or she ought to enjoy certain benefits which the employer is not willing to give him or her, to create an entitlement to such benefits through arbitration. It simply sought to bring under the residual unfair labour practice disputes about benefits to which an employee is entitled ex contractu (by virtue of the contract of employment or a collective agreement) or ex lege (the Public Service Act or any other Act. Disputes of interest, the Court held, should be dealt with by means of collective bargaining; these disputes should not be resolved by means of arbitration. Permitting employees to have these disputes heard and decided by means of arbitration would effectively undermine the collective bargaining process. For the Labour Appeal Court in this case, the unfair labour practice was limited to disputes over pre-existing rights, rights an employee had in terms of an employment contract, a collective agreement or legislation. New rights could not be made under the guise of the unfair labour practice. The first step away from regarding the unfair labour practice as congruent with pre-existing rights was taken by the Labour Appeal Court a few years later. In Department of Justice v CCMA & Page 119

10 others (2004) 25 ILJ 248 (LAC) the Labour Appeal Court focused on broader considerations, and dismissed the argument that an unfair labour practice was a dispute about pre-existing rights (disputes of right) instead, the Court said, the unfair labour practice is a statutory provision that seeks to give content to the constitutional right to fair labour practices as contained in s 23 of the Constitution of What is now envisaged in s 186(2)(a) is a statutory right not to be subjected to an unfair labour practice that takes the form of conducted spelt out in that provision. Given the fact that the Labour Appeal Court was confronting another form of an unfair labour practice altogether (the dispute before it related to promotion), the judgment does not focus on what is, and what is not, a benefit. The next step was taken by the Labour Court in Protekon (Pty) Ltd v CCMA & others (2005) 26 ILJ 1105 (LC). Again the Labour Court distances itself from the view that the unfair labour practice is on the statute books solely to provide a method for employees to enforce individual employment rights. There are two types of situations where an employer s actions may be scrutinised by the CCMA in terms of the unfair labour practice: the first is if the employer fails to comply with a contractual obligation towards the employee. The second is in cases where the employer exercises a discretion that it enjoys under the contractual terms of the scheme conferring the benefit. In IMATU obo Verster v Umhlathuse Municipality & others the dispute was again about an employer s failure to pay an acting allowance. A bargaining council arbitrator had come to the conclusion that an acting allowance does not constitute a benefit for the purposes of s 186(2)(a) and that the bargaining council therefore had no jurisdiction to deal with the matter. This point was the sole question the Labour Court had to consider on review. The crux of the Labour Court s reasoning is in the following passage: [19] A union may demand acting allowances as a matter of right in collective bargaining, or an employee might challenge a failure to pay an acting allowance to him on the basis that the employer has unfairly exercised its discretion not to pay the allowance when his situation is compared to others who were given the allowance. If an entitlement to an allowance is included in a collective agreement, individual employees could only dispute a non-payment of the allowance as an interpretation or application dispute, or possibly as a matter of enforcing terms and conditions of employment. If the concept of a benefit in section 186(2)(a) properly refers to non-mandatory benefits, workers could not resort to the unfair labour practice remedy to resolve a dispute about the payment of allowances in these circumstances. Conversely, if an unfair labour practice award has been issued which laid down parameters for the exercise of an employer s discretion when granting an allowance, then the granting of allowances would be regulated to a degree by the award. In terms of section 65(3)(a)(i) employees could not pursue protected strike action over the granting of the discretionary allowances given the existence of such an award, though they might well pursue demands for future changes to the allowance regime. The most plausible interpretation of the term benefits is that of an advantage conferred on an employee an advantage that does not originate from contractual or statutory entitlements, but which have been granted at the employer s discretion. Applied to the issue of the non-payment of an acting allowance, the Court continued to say that an unfair labour practice dispute in this context is when an employee claims that the allowance was granted to others in similar circumstances or other occasions the essence being that the employer has unfairly refused to confer the benefit on the applicant employee. This does not amount to a demand to make the benefit an obligation in respect of all employees in the future (this would be the subject of collective bargaining). This latest decision of the Labour Court may not go far enough for some in respect of excavating the core meaning of a benefit. The decision may not draw a clear and unambiguous line between remuneration and benefits. But this decision remains important for a number of other reasons. It gives CCMA commissioners and bargaining council arbitrators some useful guidance as to where their jurisdiction lies, at least in respect of benefits and the employer s failure to pay an acting allowance. The decision takes one further (giant) step away from equating the unfair labour practice with the enforcement of pre-existing rights, and, hopefully, this is now a point we can leave behind for the future. Finally, of course, from a wider perspective, the decision returns the emphasis to the actions of the employer and the unfairness of such acts or omissions. And these are the cornerstones of how we understand unfair labour practices. Carl Mischke Page 120