What to expect
There comes a time that every employer will probably have to attend a matter at the Commission for Conciliation, Mediation and Arbitration (CCMA) at some point in their ownership of a company. This is not something that anyone wants to deal with but, unfortunately, cannot be left in hope that it will go away. The CCMA is a dispute resolution body established in terms of the Labour Relations Act, 66 of 1995 (LRA). It is an independent body, does not belong to and is not controlled by any political party, trade union or business.
Who can refer a matter to the CCMA
If you are an employee in dispute with your employer, or vice versa, over matters such as:
- wages and working conditions;
- workplace changes; or
the matter may be referred to the CCMA. A union- or employer’s organisation may also initiate this action. You do not need the other party’s consent before taking a matter to the CCMA.
Who can represent me at the CCMA
The employer may be represented by any employee/director of the company or by an office bearer or official of a registered employers’ organisation. The only times when a legal practitioner will be allowed in the proceedings are:
- When the commissioner and all the other parties consent to it.
- When the Commissioner concludes that it is unreasonable to expect a party to deal with the dispute without legal representation.
Therefore, it is advisable for South African businesses to belong to an employer’s organisation.
Timeframes for opening cases
In the case of an unfair dismissal dispute, a person has only 30 days from the date on which the dispute arose to open a case. If the case is one of unfair labour practice, a person has 90 days to open a case, and with discrimination cases, a person has 6 months to open a case at the CCMA.
You’re at the CCMA – what now?
There are 3 basic processes at the CCMA, which we will deal with separately. These are:
Conciliation is a process where a commissioner meets with the parties in a dispute and explores ways to settle the dispute by mutual agreement. At conciliation, a party may appear in person or only be represented by a director or employee of that party or by a registered trade union.
Separate meetings between the Commissioner and each party may also be held. If the matter has been settled, the commissioner will issue a certificate recording that the dispute has been settled and if not, a certificate will be issued stating that the matter may be referred for arbitration.
The con/arb process will allow for conciliation and arbitration to take place as a continuous process on the same day. The process is compulsory in matters relating to:
- dismissals for any reason relating to probation; and
- any unfair labour practice relating to probation.
The CCMA must give both parties at least 14 days’ notice of the hearing date. If a party fails to appear or to be represented, the conciliation will continue on the scheduled date. If parties cannot come to an agreement with regards to settlement, the matter will continue immediately to arbitration.
Objections to the con/arb process
An employer may object to this process by giving written notice to the CCMA at least 7 days prior to the hearing.
At an arbitration, a commissioner gives both parties an opportunity to fully state their cases. The Commissioner then makes a decision on the issue in dispute. The decision, called the arbitration award, is legally binding on both parties.
In an arbitration hearing, the party in dispute may appear in person or be represented by a director or employee of the party or official of the party’s employers’ organisation. Lawyers are not normally allowed to represent parties in arbitrations over dismissal disputes. They can only be used if both the parties and commissioner consent to it or if the commissioner feel that it is necessary,
Having heard the parties and their arguments, the Commissioner will decide the outcome of the case by issuing an award. The decision is legally binding on the parties and it ends the dispute. Arbitration awards are sent to the parties within 14 days of the arbitration.
ABOUT THE AUTHOR
Irma Strydom obtained her BCom Law degree from the University of Pretoria in 2009. She joined SEESA Labour in 2009 as a legal advisor and was promoted to a senior legal advisor in the Dispute Resolution Department in 2016.