On receipt of the referral for conciliation/arbitration, check that the CCMA has jurisdiction for the dispute being referred.
Examples of jurisdictional issues that commonly arise are:
- An internal dispute resolution procedure has not been exhausted;
- S21 of the Act has not been followed in the case of organisational rights disputes;
- S10 of the EEA has not been complied with in the case of unfair discrimination disputes;
- The dispute is covered by a bargaining council and not by the CCMA;
- The applicant is not an employee;
- A dismissal did not actually occur (in the case of a dismissal dispute);
- The dispute resolution process is covered by a collective agreement;
- The issue is covered by the Department of Labour (for example, disputes over entitlements to outstanding salary covered by the BCEA).
Examples of disputes where the CCMA would not have jurisdiction to arbitrate (unless the parties agree) concern disputes about unfair discrimination and dismissals due to operational requirements. These disputes must be referred to the Labour Court.
In limine is a hearing on a specific legal point, which takes place before the actual case referred, can be heard. It is a process that addresses the technical legal points, which are raised prior to getting into the merits of the case, and relates to matters of jurisdiction.