Author: MICHAEL VISSER
LEGAL & TAX
16 March 2022
The CCMA – How does it work?
We explain the roles and responsibilities of the CCMA
The Commission for Conciliation, Mediation and Arbitration is an independent dispute resolution body. We look at the purpose of the CCMA and what services it offers.
Most South Africans have heard of the CCMA (“The Commission for Conciliation, Mediation and Arbitration”). We know that it has something to do with disputes between employees and employers. But do you know how to use the CCMA or how to bring a claim to it? This article aims to demystify the process of bringing a claim to the CCMA.
Before going to the CCMA
Before involving the CCMA in your dispute with your employer, you should first try to resolve the issue using the company’s internal procedures, such as lodging a grievance with the Human Resources Department. In fact, the Labour Relations Act (“the Act”), encourages parties in a dispute to first attempt to settle it by use of internal mechanisms. The CCMA will look to see if you tried to resolve the dispute internally before approaching them.
Can all work-related disputes be referred to the CCMA?
You can bring most work-related disputes to the CCMA, such as:
Unfair labour practices involving promotion, demotion, unfair suspension etc.
However, not all workplace disputes can be referred to the CCMA. In terms of the Act, the CCMA may not adjudicate the following disputes:
Disputes covered by Collective Agreements, Bargaining Councils, or private dispute resolution bodies.
Disputes involving “independent contractors” (who are not considered employees under the Act).
Retrenchments involving more than one person. The CCMA will try to mediate such retrenchments, but if it fails to resolve the dispute, it will refer the case to the Labour Court for Arbitration.
Are there time limits for lodging your dispute at the CCMA?
There are strict periods within which one must lodge a dispute at the CCMA. This period varies depending on the type of dispute involved.
You must refer an unfair dismissal to the CCMA within 30 days from the date of the dismissal.
You must refer an unfair labour practice to the CCMA within 90 days from the date of the dispute.
You must refer a case of unfair discrimination to the CCMA within 6 months from the date of the dispute or occurrence.
NOTE: When counting the periods referred to above, you must include weekends and public holidays.
Should you fail to lodge the dispute within the required period, you can apply for acceptance of the late filing by way of a Condonation application. That is, you can explain to the Commissioner in writing why the application was late. If he is satisfied with your reason, he will accept the application.
The process of lodging a dispute at the CCMA is reasonably straightforward. You complete Form 7.11, and email it, fax it, hand-deliver it, or post it (registered mail) to your employer. Once you have delivered Form 7.11 to your employer, you will deliver the completed form and proof of delivery to the CCMA by email, fax, or hand (if allowed, due to COVID-19). The CCMA will then contact you and your employer to inform you of the date, time and venue of the first hearing at the CCMA.
Proceedings at the CCMA
There are 2 distinct stages to the process of dispute resolution at the CCMA.
Stage 1 – Conciliation
During the conciliation stage, the Commissioner facilitates a negotiation between the parties to try to resolve the dispute. The Commissioner does not have the power to decide which party wins the case. The Commissioner can only make suggestions and assist the parties to arrive at a settlement.
Attorneys may not represent parties at the conciliation. The parties may, however, be represented by a trade union official or an official from an employer’s organisation.
If the parties are unable to resolve the dispute, the Commissioner issues a “certificate of no-outcome”. The parties may then refer the case to Arbitration (stage two).
If the dispute concerns an unfair dismissal of an employee on probation, then a so-called “con-arb” will be held. This means that the Commissioner will conduct the Conciliation and the Arbitration on the same day.
Stage 2 – Arbitration
To refer the case for Arbitration, you must complete Form 7.13, within 90 days of the issue of the “certificate of no-outcome”. In terms of CCMA rule 21, the CCMA must give both parties at least 21 days’ notice, in writing, of an arbitration hearing, unless the parties agree to a shorter period. Written notice can include communication by email.
The procedure at the Arbitration hearing is similar to a trial in a civil court, although less formal. Under certain circumstances, parties may be represented by attorneys and advocates. The phases in the proceedings are as follows:
Each party makes a short opening statement explaining their case.
Each party gives evidence and calls their witnesses to testify.
Each party may cross-examine the other party and their witnesses.
After all the evidence has been given, each party makes a short closing statement.
The Commissioner then makes his ruling.
He has up to 14 days within which to make his decision, which he will deliver in writing. The Commissioner can award monetary compensation or reinstatement.
You must attend the arbitration hearing that the CCMA schedules to deal with your case. Failure to attend the hearing might lead to the Commissioner dismissing the case, which means the CCMA will no longer help you.
We hope you have enjoyed this article and gained some valuable insight into the workings of the CCMA. We invite you to contact your Legal and Tax Advisor should you have any questions whatsoever about the CCMA or labour law matters in general.
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