The Act recognized that the dispute must have been submitted to arbitration before the arbitration or decision could take place. The LC also acknowledged that Rule 15 of the CCMA provides that the nature of the dispute is determined either by what is contained in the reference document or by what the Commissioner has identified during the CCMA proceedings. The Act held that the Commissioner must determine the nature of the dispute in order to resolve the dispute, and that he cannot be prevented from investigating the nature of the dispute because the litigant did not describe the dispute with absolute accuracy. The LC concluded that it had jurisdiction as a referral and certificate had been issued. The employer was subsequently allowed on appeal. Given the significant changes to federal civil procedure since 1938, which are not reflected in Rule 16, Rule 16 has been extensively rewritten and expanded to meet the challenges of modern litigation. Empirical studies show that when a trial judge personally intervenes at an early stage to take judicial control of a case and set deadlines for the parties to complete the main pre-litigation stages, the case is resolved more efficiently and with less cost and time than when the parties are left to fend for themselves. Flanders, Case Management and Court Management in United States District Courts 17, Federal Judicial Center (1977). Therefore, the rule requires a pre-trial planning order. While planning and pre-trial conferences are recommended in appropriate cases, they are not mandatory. Paragraph 5 is added (and the remaining paragraphs are renumbered) to recognize that the application of section 56 to avoid or limit the scope of proceedings is an issue that can and should often be discussed at a pre-trial conference. The renumbered subsection (11) allows the Court to rule on pending applications for summary judgment that are ready to be decided at the time of the conference.
Often, however, the possible application of Article 56 is an issue arising from discussions at a conference. The court may then require the submission of applications. The Constitutional Court („CC”) then allowed the employees to appeal. The AC held that a member is not bound by the categorization of any part of the nature of the dispute and that the parties are not bound by the Commissioner`s description of the dispute in the certificate of outcome, as supported by Rule 15 of the CCMA Rules and NUMWSA v. Driveline 2000(4) SA 645 (LAC). The AC explained that LAC had adopted a formalistic approach that did not take into account the purpose and context of the LRA. The CC then considered whether section 191 of the LRA had been complied with before referring the matter to the LC. In this context, the CC considered whether compliance with Article 191 could be based on evidence of what happened during the CCMA arbitration. The AC noted that the OCA accepted the employer`s argument that Rule 16 of the CCMA Rules provided that conciliation proceedings should not be disclosed. The CC interpreted pre-amended Rule 16 to mean that evidence of the nature of the dispute is not privileged because it does not relate to the content of the proceedings but is merely descriptive. The AC concluded that in determining whether a matter referred to the LC for decision was first referred to the CCMA for arbitration, the first point of reference is the referral documents, but if there is a dispute about the nature of the dispute referred to the CCMA, then evidence outside of these documents may be considered.
(I) resolve the case and apply special procedures to resolve the dispute, if permitted by local law or regulations; Defence counsel has a substantial responsibility to assist the court in determining facts worthy of a decision. If the lawyer fails to identify a problem for the court, the right to hear the case is waived. Although a decision specifying the issues is supposed to be binding, it can be changed at trial to avoid obvious injustice. See Article 16(e). However, the effectiveness of the rule depends on the sparing use of discretion by the court. 2. Compare the similar procedure under section 56(d) (Summary judgment – matter not fully disposed of on application). Rule 12(g) (grouping of applications) goes in the same direction by requiring to some extent the codification of applications relating to questions relating to the dispute in the main proceedings. For the purposes of Article 5 of this Rule, see Rule 53(b) (Masters; Reference) and 53(e)(3) (Master`s Report; in jury proceedings). Angered by the outcome of the Court of Appeal, staff turned to the Constitutional Court. The Constitutional Court considered the interpretation and application of Article 16 (prior to the 2015 amendment) in the context of Law No.
66 on Industrial Relations of the General Objective of 1995. The majority considered that Rule 16 facilitated the process of effective dispute settlement. It provides a safe haven for parties to negotiate dispute resolution without fear that what they say will be used against them. Arbitration discussions to resolve the dispute are private and privileged disclosure. However, this does not mean that everything that has been discussed in the conciliation procedure is inadmissible in subsequent proceedings. Proof of the nature of the dispute is not privileged because it does not relate to the content of the dispute but is merely descriptive. The interpretation of article 16 as providing for a general prohibition of everything discussed in the conciliation procedure does not contribute to the achievement of its objective. The time limit for issuing the planning contract is reduced to 90 days (not 120 days) after service of a defendant or 60 days (not 90 days) after the appearance of a defendant. This amendment, along with the shortened time for service under Rule 4(m), will reduce delays at the outset of the dispute. At the same time, a new provision recognizes that the court may find a valid reason to extend the deadline for issuing the planning order. In some cases, parties may not be able to adequately prepare for a meaningful conference under Rule 26(f) and then for a programming conference within the established time frame.
Disputes involving complex issues, multiple parties, and large public or private organizations may be more likely to require more time to establish meaningful collaboration between the lawyer and individuals who can provide the information necessary for meaningful participation. Since the duration of the conference under paragraph (f) of Article 26 depends on the time of the conference or the order scheduled, an order extending the duration of the planning conference also extends the duration of the conference under Article 26(f). In most cases, however, it will be desirable to hold at least one first appointment conference within the time limits set by the rule. Except in exceptional cases, the judge or a judge, if authorized to do so by the decision of the District Court, has in any event taken steps within 120 days of the filing of the complaint to inform the lawyers that the case will be brought before the court. Paragraph (b) is reinforced by paragraph (f), which clarifies that the penalties for breach of a scheduling order are the same as for breach of a pre-trial order. In order to reflect this existing practice and to avoid dependence on article 41 (b) or the inherent power of the tribunal to settle disputes, see International Corporation for Industrial and Commercial Holdings, S.A. v. Rogers, 357 U.S. 197 (1958), Rule 16(f) expressly provides for the imposition of sanctions on disobedient or recalcitrant parties, their counsel, or both, in four types of situations.
Rodes, Ripple & Mooney, Sanctions imposables for violations of the Federal Rules of Civil Procedure 65-67, 80-84, Federal Judicial Center (1981). Moreover, the explicit reference to sanctions confirms the intention of the provision to promote vigorous judicial administration. The CC`s interpretation of Rule 16 of the CCMA Rules, despite the 2015 amendments, has important implications for similar cases initiated prior to the amendment. The CC`s interpretation of the pre-amended Rule 16 reinforces the LRA`s fundamental objective of ensuring a worker`s right to fair labour practices. Employers should note that an employee`s dispute is not characterized solely by what the employee has referred to the CCMA for arbitration, as an employee`s dispute may develop later through what was said during the arbitration. As long as the matter is not exempted by local regulations, the court must issue a written appointment order, even if no nominating conference is called. The order, like pre-trial orders under the old rule and those under new rule 16(c), will normally govern „further action.” See Article 16(e). After consultation with counsel for the parties and any unrepresented litigants – a formal request is not required – the court may change the schedule for cause if, despite the diligence of the party requesting the extension, it cannot reasonably be complied with.