Procedures for Referring an Unfair Dismissal Dispute to the CCMA
According to the CCMA, unfair dismissal, workplace changes, wages and work conditions, and discrimination disputes can be referred to them for dispute arbitration. It is important to understand that you don’t need your employer’s permission to refer a dispute to the CCMA. You cannot ask the CCMA for dispute resolution regarding unfair dismissal if you are an independent contractor, or where a statutory or bargaining council already exists in the particular sector in which you work.
When is a Dismissal Unfair?
A dismissal is automatically unfair if the reasons for it are not valid. Such instances include dismissal of an employee for being pregnant or for reasons related to the pregnancy, for refusal to accept changes in the work conditions, for taking part in lawful strike, industrial, or union actions or activities, for exercising the employee’s rights according to the rights provided for by the Labour Relations Act, for reasons related to transfer after a company has merged with another company, for disclosure to which the employee has a right to disclose according to the Disclosure of Information Act provisions, and for reasons related to discrimination. Unfair dismissal is also when the correct procedures have not been followed in dismissing an employee.
How to Refer an Unfair Dismissal Dispute to the CCMA
It is essential to refer the unfair dismissal dispute to the CCMA within 30 days after the dispute arose. If it is a question of unfair labour practice, you have 90 days in which to refer the dispute, and if it is about workplace discrimination, you have 180 days to do so. Once you have decided to refer the unfair dismissal dispute to the CCMA, you must complete the LRA Form 7.11, which can be downloaded from their website, or obtained from their offices or from your labour law attorney. The next step is to complete the form and to deliver a copy to the employer. It is essential to have proof of delivery. As such, you can send it via registered mail or have it delivered, with the employer signing for it. You can also deliver it in person, but make sure to get a signature for receipt from the person who received it. Keep the delivery receipt in case of third-party delivery. Fax, post, or deliver the form to the CCMA and keep a copy.
The CCMA will set a time, date, and venue for the hearing and will notify you and the employer of it. The first hearing is called a conciliation hearing. The CCMA commissioner will preside over the hearing. All parties relevant to the dispute will attend, whether it is you and the employer or representatives, such as a trade union or employer organisation representatives. The CCMA commissioner will attempt to resolve the dispute with an agreement that is acceptable to all parties. Note that you cannot have legal representation at the hearing, but you can have legal help in completing the forms and making sure the forms are delivered, and benefit from legal advice regarding unfair dismissal and CCMA procedures.
If parties cannot come to an agreement at the conciliation hearing, the CCMA commissioner will issue a certificate to indicate the unsuccessful outcome. The nature of the dispute will determine whether it can be referred to the CCMA for arbitration or whether it must be decided over by the Labour Court. Should the dispute fall within the Labour Court jurisdiction, you will need to make use of the services of a labour attorney for litigation. If the dispute is referred to the CCMA for arbitration, you will need to complete the LRA Form 7.13, with a copy delivered to the employer, following the same steps as for LRA Form 7.11. The form can be obtained from the CCMA website, their offices, or from a labour law attorney. Should you wish to proceed with arbitration on the matter, you must apply within 90 days from when the certificate was issued by the CCMA commissioner.
In terms of arbitration, we recommend that you get legal representation, as it is a formal process and the employer will probably have legal representation. Cross examination of the parties involved is allowed, in addition to the calling of witnesses and examination of supporting documents. The CCMA commissioner will make the final decision and will issue an arbitration award within two weeks. If a party does not comply to the terms of the award, the Labour Court can order them to comply.
Make use of our attorneys to get legal guidance and assistance regarding referral of unfair dismissal disputes to the CCMA. Contact us at reception@www.allardyce.co.za or on (011) 234 2125.
NB: This article is for information purposes only and does not constitute legal advice. You are advised to consult with us before using/relying on this information.
