Mashego v Cellier No and Others (2016) 37 ILJ 994 (LC)

/ / 2018, Labour Law, News


The applicant, Mr Mashego, was dismissed for alleged misconduct. In response thereto, he referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (“the CCMA”). The matter remained unresolved at conciliation and, as a result, the applicant referred his case to arbitration, which came before the first respondent in his capacity as commissioner.

During the above mentioned arbitration proceedings, the union official that was representing the applicant represented to the CCMA that the applicant’s dismissal was based upon his affiliation to the union. The first respondent suspended the proceedings and struck the matter from the roll on the basis that the CCMA did not possess the necessary jurisdiction to continue with the arbitration of the dispute.

After seeking legal assistance, the applicant’s attorneys applied to the CCMA to have the unfair dismissal dispute re-enrolled for arbitration. The first respondent refused to re-enrol the unfair dismissal dispute and proceeded to make an order that his previous ruling, to strike the matter from the roll, was res judicata.

The applicant proceeded to rely upon section 158(1)(g) of the Labour Relations Act 66 of 1995, which provides for the review of the performance of any function allowed for in the Act, and applied to have the ruling reviewed and set aside. In this regard, the applicant stated, under oath, that his union representative acted without his instruction and that the matter was simply an unfair dismissal dispute in relation to the alleged misconduct. Thus, the issue that was before the Labour Court was whether the first respondent had correctly ruled that the dispute was res judicata.


The Labour Court referred to PT Operational Services (Pty) Ltd v RAWUSA obo Ngweletsana (2013) 34 ILJ 1138 (LAC) (PT Operational Services”), in which Musi AJA provided that the doctrine of res judicata will only apply to a matter once the statutory duties and/or functions of the relevant administrative agency have been spent by its first exercise. Musi AJA proceeded to state that, if a claim was dismissed on the basis of a procedural point, such dismissal would be equivalent to an order of absolution in the instance in which case, the applicant would be able to set the matter down again.

The Labour Court further clarified that the doctrine of res judicata would only apply to a ruling that is final in effect. In this regard, it would be necessary to enquire whether or not the matter was dismissed on the basis of its merits. In the event that a matter was to be dismissed on the basis its merits, then such order would be final in effect. However, should a matter not be decided on its merits, then such order would not be final in effect.

In light of the above principles, the Labour Court stated that a party to a dispute that is before the CCMA may withdraw its matter before such matter has been finally decided and re-enroll same. In this matter, the applicant did not withdraw the dispute, but the first respondent struck it from the roll. Thus, the Labour Court decided that the dispute had not been finally decided on its merits and that the applicant was not precluded from re-enrolling it. In accordance with its decision, the first respondent’s decision was set aside by the Labour Court and the CCMA was ordered to set the matter down for arbitration before a new commissioner.


The case highlights that, in the instance that an unfair dismissal dispute is struck from the roll at arbitration proceedings by a commissioner of the CCMA, without a final ruling having been made on the merits of the dispute, that such matter may be re-enrolled for arbitration.

Written by Lyndsey Strachen, Candidate Attorney and supervised by Maike Gohl, Senior Associate


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