CCMA can hear disputes about fairness

Jan Truter

Jan Truter

RECENT developments in case law resulted in disputes about “benefits”, which would previously have been referred to the Labour Court, now being referred to the Commission for Conciliation, Mediation and Arbitration (CCMA).

Previously, employers could avoid liability for unfair labour practice claims relating to “benefits” since it was argued that the CCMA lacks jurisdiction where a dispute about benefits relates to remuneration. But employers should note that this argument for the CCMA not hearing such cases has since been eroded significantly.

The CCMA has jurisdiction to entertain disputes not only about unfair dismissal, but also in relation to “unfair labour practices”. An unfair labour practice is defined in Section 186(2)(a) of the Labour Relations Act as “unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee” (emphasis added). Most of the grounds are fairly clear, but the lack of a further definition of “benefits” has led to much confusion.

For a long time it has been accepted that, as a point of departure, a distinction needs to be drawn between benefits and remuneration. If it could be shown that a dispute about alleged benefits may be regarded as a dispute about remuneration, this would fall within the domain of the civil courts or the Labour Court, and the CCMA would not have jurisdiction.

The Labour Appeal Court cut through much of the confusion in the case of Apollo Tyres SA (Pty) Ltd vs CCMA and others. The court found that the “benefits” contemplated in Labour Relations Act include not only those to which employees are contractually entitled, but also those benefits they might expect in terms of policy and where the employer has a discretion. A similar approach was followed in the Labour Court case of Trans-Caledon Tunnel Authority vs CCMA and others. In the latter case, the employer introduced a performance bonus that was more favourable to new employees than existing employees.

The court found that, while the issue in dispute also fell within the definition of “remuneration” and could well be adjudicated by the civil courts or the Labour Court, an employee had the choice of referring the matter to the CCMA as a dispute relating to “benefits” if the employee claimed that the employer had exercised its discretion unfairly. In this case, the court upheld the CCMA’s award that the employee was found to be entitled to the bonus he had been seeking.

This principle has also been applied to other forms of remuneration that would previously have been regarded as falling outside the CCMA’s jurisdiction.
But what about the argument that disputes about benefits should be regarded as “disputes of interest”, which may not be adjudicated by the CCMA or Labour Court? According to this view, the only course of action that employees would have is to exercise their right to strike.


Our labour law dispensation makes a distinction between “disputes of right” and “disputes of interest”. In the case of a dispute of right, the basis of an employee’s claim is vested in a legal or contractual right. Such a right can be enforced through the civil courts, the Labour Court or the CCMA (in some instances).

A dispute of interest, on the other hand, is not based on any existing right; here, employees or their unions approach the employer in order to establish a new right.

If the employer does not want to give employees what they want and the matter remains unresolved, then the employees may exercise their right to strike after following the appropriate procedures. They cannot have their wishes enforced through the CCMA or Labour Court. A single employee would have no recourse whatsoever, because only two or more employees can strike.

So, where an employee alleges that he or she has been unfairly deprived of a “benefit”, is this not a dispute of interest? In other words, where the employee’s claim is not based on an existing right, could the employer argue that the CCMA and Labour Court lack jurisdiction?
In the Labour Court case of Trans-Caledon Tunnel Authority vs CCMA and others, the court made an important distinction.

The judge pointed out that disputes of interest are limited to situations where employees want to establish a new right or benefit. The unfair labour practice provisions cannot be used to assert an entitlement to new benefits.

However, where there is a claim about the unfair conduct of the employer, it could be referred to the CCMA as an unfair labour practice relating to benefits.

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