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Labour Relations Act, 1995 (Act No. 66 of 1995)

Commission for Conciliation, Mediation and Arbitration

Guidelines on Misconduct Arbitration

F: How to Approach Remedies

Amounts payable in terms of section 74 of the Basic Conditions of Employment Act 75 of 1997

 

(144) Section 74(2) of the Basic Conditions of Employment Act 75 of 1997 gives CCMA arbitrators the jurisdiction to determine, in conjunction with unfair dismissal disputes, claims for amounts that an employer owes an employee in terms of the Basic Conditions of Employment Act, provided that the claim has not prescribed.71 Those amounts include claims for unpaid salary or wages, overtime or leave pay.

 

(145) As a result, an arbitrator may exercise jurisdiction if the claim only emerges during an arbitration and has not been raised in the referral form. In such a case, the employer would be entitled to a postponement in order to respond to the claim. The fact that a compliance order has been issued or proceedings have been instituted in another forum, is not a bar to an arbitrator determining the issue. However, once an arbitrator has made a determination in respect of an amount owing in terms of the Basic Conditions of Employment Act, no compliance order may be issued or enforced and no other legal proceedings may be instituted in respect of the claim.72

 

 

71 The Basic Conditions of Employment Amendment Act removed the requirements that for the CCMA to exercise jurisdiction a claim had to be referred in compliance with section 191 of the LRA; the amount could not have been owing for longer than one year and that no compliance or legal proceedings had been instituted to recover the amount.
72 Section 74(2A) of the Basic Conditions of Employment Act, 75 of 1997.