CAN CCMA JOIN A PERSON TO A PROCEEDING AGAINST ITS WILL?

[Ivan Israelstam]

CAN CCMA JOIN A PERSON TO A PROCEEDING AGAINST ITS WILL?
Rule 26 of the CCMA Rules permits a CCMA commissioner to join persons to an arbitration as parties to the proceeding “… if their right to relief depends on substantially the same question of law or fact.” The commissioner can order such joinder “…. if the party to be joined has substantial interest in the subject matter of the proceedings”.
A literal reading of this rule indicates that such a joinder would pertain to persons who may have similar rights to relief as one of the original parties and/or who have a substantial interest in the subject matter. This wording strongly suggests that persons to be joined would be potential applicants who may obtain redress by participating in the proceedings.
However, the CCMA quite often uses rule 26 to join employers to arbitration proceedings, effectively forcing them to become respondents despite never having been cited by the applicants.
Would such an employer, pressganged into becoming a respondent, be successful in striking down such a joiner order and invalidating its forced respondent status by arguing that it neither has a right to relief in the matter nor has any interest in participating therein nor has an interest in the subject matter of the proceedings?

[Ingrid Lewin]

If the relief that the employee seeks is likely to impact on the employer then the employer must be joined. Like any other proceeding, however, the employer can choose whether to defend the action or let it go by default or gives notice that he/she/it is prepared to accept the arbitrator’s award without defending the case. There is nothing compelling an employer to participate, However, by not doing so, the employer risks an award against it by default.

INGRID LEWIN

[Michael Bagraim]

Unfortunately this has to be allowed in that the CCMA will postpone and it will affect another Respondent. This is routinely done where a Joinder Application is brought against another Respondent.

MICHAEL BAGRAIM

[Patrick Deale]

The party must be joined as a respondent if there’s sufficient evidence to show that it has an interest in the relief claimed. A typical example is an old employer who is jointly and severally liable with the new employer for the relief claimed by employees in a s197 transfer case.

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