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Unfairly Dismissed: CCMA Unfair Dismissal Proceedings Explained
Understanding your rights as employee will help you to recognise instances where the employer doesn’t act within the boundaries of the law. The CCMA unfair dismissal investigation procedure may seem complicated, but as an employee you have the right to refer a dispute with your employer regarding wages and work conditions, changes in the workplace, unfair discrimination and unfair dismissal to the CCMA for a decision.
It is important to note, however, that the CCMA doesn’t deal with UIF related issues, such as registrations. If you have a problem with regards to this matter, you should contact the Department of Labour to investigate the issue.
You don’t need the consent of your employer to refer an unfair dismissal dispute to the CCMA. Indeed, you can have a union refer the dispute on your behalf. However, you cannot refer a dismissal dispute to the CCMA if you are an independent contract worker or if there is a bargaining or statutory council for the particular sector in which you have been employed. An unfair dismissal dispute can also not be referred to the CCMA for arbitration or dispute resolution if there is a private agreement for handling of the dispute or if the situation doesn’t apply to a condition with the LRA, BCEA or EEA.
How the Process Works
You must refer the issue of unfair dismissal to the CCMA within 30 days from the date that the issue originated. You will be required to complete the case referral LRA 7.11 form, which you can obtain from the Department of Labour or directly from the CCMA. A copy of the completed form must be delivered to the employer and proof retained regarding such. Both you and your employer will receive a written notification about the time, date and venue for the first CCMA hearing on the case.
Delivery methods range from faxing to registered mail or courier delivery, in addition to in-person delivery. Just make sure you get the required proof of delivery, such as a slip for registered mail or courier delivery. It is not necessary to deliver the form to the CCMA in person. You can fax or mail a copy, as long as you retain proof of such delivery and submit proof of a copy delivered to the employer. The CCMA will then inform you and the employer regarding the hearing location, date, and time.
The first CCMA hearing is the conciliation where you and the employer, the union representative and employer organisation representative, where relevant, should be present. The CCMA commissioner will oversee the proceedings with the purpose of finding an acceptable agreement between the parties involved. Note that you cannot have a lawyer present you at the hearing. However, you can obtain legal advice to ensure that you understand your rights.
If the parties are not able to come to an agreement, the commissioner will issue a statement regarding such and the case can then be officially referred to the CCMA for arbitration or, as alternative, it can be referred to the Labour Court. For arbitration to take effect you have to submit the LRA 7.13 form and serve the employer or his organisation with a copy. Should you wish to follow the arbitration route, you will have to apply for such within 90 days from the issuing of the statement by the commissioner regarding the unresolved dispute.
The arbitration date will be set and attending parties will have the right to cross examine witnesses. Various supporting documents may be required. A commissioner oversees the proceedings and will make the final decision, which will be binding on both parties. Where a party fails to comply with the commissioner’s decision, the case will be referred to the Labour Court for an official order for compliance.
Contact the Allardyce & Partners attorneys at email@example.com or on 011 234 2125 for legal guidance and assistance regarding CCMA proceedings and unfair dismissals.
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.