BCHC: Can jurisdictional arguments be raised after a certificate of outcome has been issued?

Written by Jeannette Vlok and edited by Bradley Conradie

Parties often only realise that there are jurisdictional issues that they could raise before the date of the arbitration. The question then arises as to whether a party can or should raise those jurisdictional issues after the matter has already been conciliated.

There is a misconception that the fact that a matter has been conciliated condones any jurisdictional defects such as lateness or non-joinder. The fact that a certificate of outcome has been issued does not however confer jurisdiction on the CCMA or a bargaining council to arbitrate a dispute.

This was confirmed in Bombardier Transportation (Pty) Ltd v Mtiya [2010] 8 BLLR 840 (LC) where the Labour Court held that “a certificate of outcome is no more than a document issued by a commissioner stating that on a particular date, a dispute referred to the CCMA for conciliation remained unresolved. It does not confer jurisdiction on the CCMA to do anything that the CCMA is not empowered to do, nor does it preclude the CCMA from exercising any of its statutory powers. In short, a certificate of outcome has nothing to do with jurisdiction. If a party wishes to challenge the CCMA’s jurisdiction to deal with an unfair dismissal dispute, it may do so, whether or not a certificate of outcome has been issued. Jurisdiction is not granted or afforded by a CCMA commissioner issuing a certificate of outcome. Jurisdiction either exists as a fact or it does not.”

The position in Bombardier was also confirmed by Cinqplast Plastop (Pty) Ltd v Dunn NO & Others [2016] JR 1751/14 and in SAMWU obo Manentza v Ngwathe Local Municipality & Others [2015] 9 BLLR 894 (LAC).

The CCMA and bargaining councils are therefore obliged to first determine whether or not it has jurisdiction before proceeding to arbitrate the dispute in question.

This risk of not raising these issues and ensuring that the CCMA or bargaining councils actually have jurisdiction is that these jurisdictional issues can later be used as grounds for review by the unsuccessful party.

Parties can and should therefore raise any jurisdictional issues as soon as they come to light to avoid a situation where the matter is remitted back to the CCMA or a bargaining council to be heard again, which could be years after the initial referral.