Remedies – what can we claim in the CCMA?
Johanette Rheeder

Many an employer and employee are at a lost as to exactly what type of claim for remuneration and benefits can be claimed in the CCMA or bargaining councils. Employees are often dissatisfied with their benefits and salary and threaten regularly with claims to the CCMA and Department of Labour. Employers refer to civil claims and many an employee lost jurisdictional claim for benefits and remuneration in the CCMA.

 

Section 186(2) defines an unfair labour practice as any unfair act or omission that arises between the employer and employee involving a specific capped amount of conduct. Section 186 (2) (a) of the LRA envisages a type of unfair labour practice relating to the provision of “benefits” to an employee. The Legislator thought it wise to cap the unfair labour practice dispute in the Labour Relations Act, and this section does not include remuneration claims. So, every time we want to arbitrate a dispute about benefits or remuneration, we need to convince the Commissioner that we have jurisdiction in the CCMA.

In deciding on this issue, the courts and arbitrators have long wrestled with the meaning and scope of the term “benefit”. Initially, the prevailing view was that a benefit is an existing entitlement derived from a contract, collective agreement or statute. It should not be based on what the employee wanted or thought he was entitled to (fresh or new rights) but what is clearly created or established in law (contract, statute or collective agreement). This view was based on the need to preserve the distinction between “disputes of right” and “disputes of interest”, the former of which may be resolved by arbitration or litigation, and the latter of which must be resolved by industrial action. An unfair labour practice was also something other than remuneration. If it amounts to remuneration, then the CCMA does not have jurisdiction under the unfair labour practice dispute section of the LRA.

The issue was recently determined upon in IMATU obo Verster v Umhlathuze Municipality & others (2011) 20 LC 1.11.7, (also referred to in [2011] JOL 27258 (LC) and [2011] 9 BLLR 882 (LC)). The applicant employee was employed in an acting capacity as manager of a particular project for two successive periods. He was paid an acting allowance for the second period, but not for the first. He referred an unfair labour practice dispute to the SA Local Government Bargaining Council. The respondent arbitrator dismissed the application on the basis that an acting allowance does not constitute a “benefit” falling within the scope of the definition of “unfair labour practice”, and ruled that the council lacked jurisdiction. The applicants contended on review that this decision was wrong. The sole issue before the court was whether the arbitrator’s decision that an acting allowance did not constitute a benefit was right or wrong.

The court found that the Commissioner took to strict a view on the definition of an unfair labour practice relating to benefits and did not consider recent authority that had a wider view of benefits. The court considered various authorities which took a wider view, and specifically found that more nuanced interpretations of the scope of an unfair labour practice concerning a benefit have been advanced. In essence, it found that, importantly, for present purposes, the LAC made it clear that an unfair labour practice claim is a distinct statutory right which an employee can assert independently and it is not one that is merely contingent on the existence of some other legal obligation (such as contract, statutory or collective agreement).

The court also referred to other cases where the court also sought to delineate two distinct classes of benefit, namely the contractual and statutory based benefits which an employer fails to comply with and also the discretionary benefits provided by an employer that flows from the contractual terms of the scheme conferring the benefit. The court also agreed with the stance that the question can be decided by a proper conceptualisation of the true nature of the dispute between the parties and not how they have characterised, or “packaged” it.

The Court therefore found that what the brief review of the case law and academic commentary reveals, is that there has been a shift in the conceptualisation of the ambit of the unfair labour practice claim (at least in relation to the notion that a prerequisite for bringing such a claim is proof of a pre-existing right).

In this case, the court found that an unfair labour practice dispute over an acting allowance, in which an employee is making the claim on the basis that it was granted to him or others in similar circumstances on other occasions, is a claim that the employer has unfairly refused to confer the benefit on the occasion in question. The previous practices of the employer were therefore considered to be an unfair practice, notwithstanding the fact that the practice did not create a binding contract or agreement.

On the question as to whether this is binding on the employer in future in other cases, therefore creating new rights for employees, the court found it does not amount to a demand to make the benefit obligatory in the future. The latter claim said the court, would properly be the subject-matter of collective bargaining. It is still true that if the employee is successful in his unfair labour practice claim this might clarify the factors the employer ought to consider in granting or refusing to grant the benefit in the future and might mean that it will be easier to predict when the benefit is likely to be granted, but that does not, in principle, make the dispute one about the creation of new rights.

The next question to consider is what about remuneration claims? It is trite that it cannot be claimed under an unfair labour practice, but does that mean that the CCMA has no jurisdiction? We all know that the Department of Labour does not get involved if the employee earns more that the statutory threshold.

No, it does not, the CCMA has limited jurisdiction under the Basic Conditions of Employment Act where the employee has referred an unfair dismissal dispute to the CCMA, and claims that some remuneration or payment due in terms of the BCEA is still outstanding. In terms of section 74 of the BCEA certain conditions must be met before the remuneration claim can be consolidated with the unfair dismissal claim. First of all, the remuneration claim must be instituted together with the referral of the unfair dismissal claim in terms of section 191 of the LRA. It must then conciliated by the CCMA and must not be owed by the employer for longer than 12 months. Further requirements are that no compliance order must be made and no other legal proceedings must have been instituted to recover the amount.

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Johanette Rheeder Attorneys

www.jrattorneys.co.za