A self-help guide to the CCMA

The Commission for Conciliation, Mediation and Arbitration (CCMA) is an independent body that employees can approach for assistance in resolving disputes in the workplace in terms of the rules governed by the Labour Relations Act (LRA). An employer, union or employer organisation may also refer a dispute to the CCMA.

Who is an employee

The LRA stipulates that if any one or more of the following conditions exist, the person is considered to be an employee:

• The manner which the person works is subject to the control or direction of another person
• The person’s hours of work are subject to the control or direction of another person
• The person works for an organisation and the person is considered to form part of that organisation
• The person has worked for another person for an average of 40 hours per month over three months
• The person is economically dependent on the other person
• The person is provided with the tools of trade or work equipment by the other person
• The person only works or renders services to one person

What types of disputes can be referred to the CCMA?

• If the employee has been unfairly dismissed
• Any unfair labour practice including promotion, demotion or unfair suspension
• If either party feels that he/she has been discriminated against

Disputes that may not be referred to the CCMA

• Disputes over non-payment of salaries or wages must be referred to the Department of Labour.
• Disputes covered by collective agreements, Bargaining Council or a private dispute resolution body.
• Disputes involving independent contractors. The CCMA only covers employees as defined in the Labour Relations Act.
• Disputes regarding large scale retrenchments are not arbitrated by the CCMA, but are conciliated and referred to the Labour Court if no settlement is reached. However, in cases where only one employee is retrenched, he/she can elect to have the dispute arbitrated by the CCMA or refer it to the Labour Court.

When to refer a dispute

• Unfair dismissal disputes must be referred to the CCMA within 30 days from the date of dismissal.
• If the dispute relates to an unfair labour practice, it must be referred to the CCMA within 90 days from the date on which the dispute arose.
• If either party believe that they have been discriminated against, then it must be referred to the CCMA within 6 months from the date that the dispute arose.

Note: The 30-90 days includes weekends and public holidays.

How to refer a dispute

1. If you want to refer a dispute you will be required to complete a CCMA case referral form (LRA Form 7.11) and email, fax, post per registered mail or hand deliver the form to your employer.
2. Once delivered, you must send the completed form and proof that it has been delivered to the employer to the CCMA by email, fax or hand.
3. The CCMA will then contact you and the other party within 30 days of the referral and inform you of the date, time and venue of the first hearing, namely conciliation.
4. Parties may not be represented by legal representation at conciliation. However, representation by a registered trade union or registered employers’ organisation is allowed.
5. During conciliation the CCMA Commissioner will attempt to assist the parties to resolve the dispute by reaching an agreement mutually acceptable to both, failing which a certificate of no-outcome is issued.
6. The matter can then be referred to arbitration or the Labour Court depending on the type of dispute. If you want to refer a dispute for arbitration you will be required to complete a CCMA case referral form (LRA Form 7.13) within 90 days of the certificate being issued.
7. The types of conciliation settlements include financial, reinstatement, reference settlements or a withdrawal of the case.
8. If the dismissal occurred while the employee was on probation, then “con/arb” is mandatory. This means that the matter will be conciliated and arbitrated on the same day.

Note: If errors have been made by the referring party in completing and serving the form, such errors might render the referral to be defective, resulting in the CCMA not having the jurisdiction (or authority) to hear the matter because it has been improperly referred.

Arbitration

When conciliation fails, the CCMA may resolve the dispute by arbitration. It is a more formal process than conciliation as it does not promote negotiations.

The parties can agree to meet prior to the set down date for pre-arbitration with the purpose of identifying procedural and substantive issues and ultimately find common ground to resolve the matter without the need for a lengthy arbitration hearing. Parties may also agree on the forms of evidence, listed witnesses and exchange of bundles containing the documentation to be relied on at the hearing.

Either party may be represented by a legal practitioner, a director or employee of the party or any member, office-bearer or official of the party’s registered trade union or registered employers’ organisation.

Attorneys are not normally allowed to represent parties in arbitrations relating to misconduct dismissal disputes without the Commissioners and/or the other parties’ consent.

At the hearing, the Commissioner will give both parties an opportunity make a short opening statement explaining the background and the purpose of the referral and what they think the outcome should be and how they intend to prove their case. Each party has to provide a full statement under oath and will have the opportunity to cross and re-examine each other and those giving testimony.

At the conclusion, the Commissioner will ask each party to make a closing statement by summarising discrepancies in the other party’s testimony, what the outcome should be and why. The parties may mutually elect to submit written closing arguments but subject to the Commissioner’s approval.

The Commissioner will then make a decision on the issue/s in dispute and the decision, called the arbitration award, is final and legally binding on both parties. Arbitration awards are sent to the parties within 14 days of the arbitration.

Default

The LRA provides that an arbitration award issued by a Commissioner is final and binding and it may be enforced as if it were an order of the Labour Court but only if the Director has certified that the arbitration award is an award.

An application to have an arbitration award certified must be made by completing a LRA Form 7.18 in respect of an award by a Commissioner or a LRA Form 7.18A in respect of an award by a Bargaining Council.

If an arbitration award orders a party to pay a sum of money, the amount can earn interest from the date of the award at the rate prescribed from time to time in respect of a judgment debt in terms of section 2 of the Prescribed Rate of Interest Act, 1975.

Any arbitration award that has been certified in terms of section 143 of the Act that orders the payment of an amount of money may be enforced by execution against the property of the employer by the Sheriff of the court in the Magistrates district where the employer resides or conducts business.

If a party fails to comply with an arbitration award that orders the performance of an act rather than payment of money, a party may enforce it by way of contempt proceedings instituted in the Labour Court.

Review and Rescission

A party can appeal the outcome by lodging an application with the Labour Court to review the arbitration award but only if the arbitrator:

• Committed misconduct in relation to his/her duties
• Committed a gross irregularity in the conduct of the proceedings
• Exceeded his/her powers
• Made the award improperly

A party can also lodge an application with the CCMA to rescind the arbitration award.

Both applications will consist of affidavits and other supporting documents but the review must be in accordance with the Labour Court rules and the rescission in accordance with the CCMA rules.

The CCMA or the Labour Court may set aside the original award or confirm it. If the award is rescinded or set aside, then the matter may have to be arbitrated all over again.

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Article sourced from Legal&Tax.

See also:

• The Basic Conditions of Employment Act
• The CCMA – What’s it all about?
• Recording conversations without consent
• A COVID ‘escorted’ dismissal