Argument on points in limine in CCMA arbitrations - Pdf

Between AAAA Applicant And BBBB Respondent HEADS OF ARGUMENT - POINTS IN LIMINE ___________________________________________________________________ 1 The Respondent employer filed its statement of response the Applicants’ statement of case on 30 October 2013. In its statement of response the EMPLOYER raised a point in limine. 2 The parties agreed that the points in limine be argued on the 25th of November 2013 in order for the CCMA to decide whether the EMPLOYER will be successful with its points in limine, before the matter will be set down for arbitration. 3 For the purpose of clarity on the claim of the Applicant, the Commissioner is referred to the statement of claim of the applicants, which will not be repeated herein. Where relevant, I will refer to the statement of claim. Page 2 4 POINT IN LIMINE 1 4.1 In terms of the first point in limine, the EMPLOYER alleges that the Applicant, by virtue of accepting his current position, are non-suited to allege an unfair labour practice in terms of section 186 (2) (a). It is alleged by the EMPLOYER that the acceptance of his position, constituted his declaration of will and assent to the proposed offer of placement into the accepted positions. This is denied by the Applicant. The Applicant denies that he accepted the position unconditionally. 4.2 It is trite law that any employee has recourse in terms of the Labour Relations Act, 66 of 1995 to declare an unfair labour practice dispute to the CCMA in terms of section 186 (2) (a). It is further trite law that an employer cannot prevent or contract with an employee not to, or dismiss an employee for instituting any such action in the CCMA, (therefore contract out of labour legislation) unless the employer can show that the dispute has been settled by the parties1 . In order for this point in limine to be successful the EMPLOYER must be able to prove the following: 4.2.1 That the applicant declared a dispute relating to the unfair labour practice, specifically an unilateral demotion; and