When Can a CCMA Commissioner Correct an Earlier Jurisdictional Ruling?

The dispute had been referred to the CCMA as an unfair labour practice dispute. However, the Commissioner initially believed that the dispute concerned the interpretation and application of a collective agreement. He therefore ruled that the CCMA did not have jurisdiction and directed that the parties argue whether the CCMA could deal with such a dispute.

UNTU challenged this ruling, arguing that it had always pursued an unfair labour practice dispute. It also argued that the Commissioner had failed to properly consider important referral documents, including the amended referral.

After reconsidering the referral documents and the way in which UNTU had actually presented its dispute, the Commissioner accepted that his initial ruling had been made in error. He concluded that the dispute was indeed an unfair labour practice dispute and directed that it proceed to arbitration.

The Applicants challenged this second ruling, arguing that the Commissioner was functus officio – in other words, that he had already made his decision and no longer had the power to reconsider it.

The Labour Court rejected this argument.

What Did the Labour Court Decide?

The Court emphasised that a Commissioner must determine the true nature of the dispute before deciding whether the CCMA has jurisdiction.

Importantly, a jurisdictional ruling by a CCMA Commissioner, other than a condonation ruling, is not necessarily a final ruling. A jurisdictional ruling does not ordinarily decide the merits of the dispute.

This was different from a refusal of condonation. If condonation is refused, the matter is finally disposed of because the CCMA cannot proceed with a late referral.

In Ntombela, the Commissioner had only made an initial determination about the nature of the dispute. He had not decided whether UNTU would ultimately succeed or fail on the merits.

The Court therefore found that the Commissioner was entitled to correct his earlier ruling after realising that it had been based on an incorrect understanding of the referral documents.

The Key Principle

The important lesson from Ntombela is that a CCMA Commissioner must look at the actual dispute placed before the CCMA, rather than proceeding on an incorrect assumption about its nature.

Where a jurisdictional ruling has been made without properly considering the relevant referral documents, and the ruling has not finally disposed of the merits, the Commissioner is not necessarily functus officio and may correct the error.

Ultimately, the true nature of a dispute may only become clear once all the evidence has been presented at arbitration. Even then, the Commissioner may still determine that the CCMA does not have jurisdiction if the evidence establishes this.

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