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The consequences of election

Dec 7,2015


Can an employee, who elects to describe her unfair dismissal dispute as a retrenchment, and who pursues her claim to finality at the Commission for Conciliation, Mediation and Arbitration (“CCMA”) subsequently elect, upon being partly unsuccessful before such forum, to challenge the jurisdiction on the CCMA? In particular, can such employee challenge the jurisdiction on the basis that the commissioner should have realised the true nature of the dispute in the present instance; being an automatically unfair dismissal on the basis of pregnancy?


In Ngobe v J.P Morgan Chase Bank and Others (JR 1893/2012, JR 1882/2012) [2015] ZALCJHB 317 (17 August 2015) the Labour Court, per Van Niekerk J, had to give consideration to the above issue. Mrs Ngobe sought to review an arbitration award in which her retrenchment was found to be substantively fair but procedurally unfair. After the award was issued, Mrs Ngobo contended that the true reason for her dismissal was that she was pregnant. Therefore, she claimed, the commissioner should have referred the matter to the Labour Court for adjudication.

The Court, having regard to the fact that: Mrs Ngobe was legally represented at the CCMA proceedings; had entered into a pre-arbitration minute which clearly indicated that no preliminary points arose for consideration; was dominus litis (i.e. the party bringing the claim) in the proceedings; and had not sought to pursue a jurisdictional challenge during the course of the arbitration could not now seek to challenge the jurisdiction off the CCMA.

The court held as follows at paragraph 12 of the judgement:

“There is a trend in the CCMA for commissioners to intervene…and to halt arbitration proceedings and refer a dispute to this court when the commissioner forms the view that he or she has no jurisdiction on the basis that the real dispute between the parties concerns a reason for dismissal that is listed as automatically unfair. This is an unfortunate trend. A party referring a dispute to the CCMA must stand or fall on the merits of that dispute”.

The court went on to hold that while there can be no harm in a commissioner advising an applicant that an automatically unfair dispute is not determinable by the CCMA in instances  where “the parties make conscious decisions to run a case in an arbitration process in full appreciation of the jurisdictional consequences of their election, it is not appropriate for commissioners to intervene by abandoning the proceedings, thereby dictating to the parties what he or she things their real dispute is and how should be litigated.”

The court dismissed Mrs Ngobe’s review.


A referring party must carefully consider the true nature of his/her case as it is the applicant in such matters who determines to which forum the dispute will go. Whilst the CCMA (and accredited bargaining councils) do not rely on written pleadings to the extent that courts do and tend not to hold parties to the letter of their referral forms, there are limits to the extent to which the applicant (and the commissioner) can change track after referring a matter, such as demonstrated in this matter. There comes a point beyond which a party who elects to pursue a claim in one forum will be bound by his/her election. Factors which may play a role in the extent to which changes of forum or the nature of the dispute will be permitted may be whether the party is unrepresented, has concluded a pre-arbitration (or trial) conference minute and his/her awareness of the jurisdictional consequences of their decision.

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