How and When to Refer a Workplace Dispute to the CCMA for Resolution
Ignorance of the role of the Commission for Conciliation, Mediation, and Arbitration (CCMA) in labour disputes is often the reason employees who were dismissed unfairly do not take any steps to seek compensation or reinstitution from their employers. Expert CCMA advice and representation are thus recommended for employers and employees alike.
What is the CCMA?
It is an independent body authorised for handling labour disputes between employers and employees. The CCMA is not affiliated with any unions, worker representative groups, or employers and employer representative groups. As such, it provides a fair and objective platform where disputes can be settled.
Which types of disputes can be referred to the CCMA?
Disputes referred to the body by employer organisations, employers, unions, and workers can be heard and binding rulings made about them. Matters related to mutual interest, unfair discrimination, collective agreements, unfair labour practices, organisational rights, freedom of association, and unfair dismissals can be referred to the CCMA for resolution.
Requirements before referring issues
It is important to understand that most issues can be solved between the employer and the employee without intervention from the CCMA. In this regard, we recommend making use of our advice to ensure that the disputes referred fall within the authority scope of the CCMA. The employer and employee or, where relevant, employer organisation and union, first need to attempt to settle the dispute according to the employer’s written policy for dispute management. It is also important to ensure full compliance with legal requirements and the relevant parties must assess whether the case has any merits. Our legal team can help in this regard with professional advice and guidance regarding CCMA representation. It is, for instance, essential to first determine whether the CCMA has jurisdiction to decide on the matter and then the correct referral procedure must be followed.
Disputes outside CCMA jurisdiction
Employees often mistakenly refer disputes regarding non-payment of salaries to the CCMA instead of the Department of Labour. The CCMA can also not rule over collective agreements that fall within the authority of a bargaining council and cannot rule over a dispute when it involves an independent contractor.
Timeframe
Another reason for making use of expert CCMA advice and representation is to minimise the risk of submitting the referral too late. For dismissal issues, referral must be done within 30 days of the dismissal date or within 30 days of the date on which the employer decided to uphold the termination of employment. For issues related to unfair labour practice, the timeframe is within 90 days of the incident or 90 days from when the employee has become aware of the issue being an unfair labour practice. The days include public holidays and weekends and as such, the timeframe is for 30 or 90 calendar days and not workdays.
What form must be used?
The correct completion of the LRA 7.11 form is essential. Our attorneys are here to assist with the form completion and submission process. The correct procedure for submission entails first sending the completed referral form to the employer/employee (or whoever the other party is) by means of hand delivery, registered mail, or faxing. The next step is to submit the referral form to the CCMA together with proof of sending the form to the other party. This can be a signed receipt that includes the name and title of the person who received it (whether the employer/employee or their representative). You can also attach the fax transmission report with details from where to where you sent the fax, the date of delivery, and the number of pages. If you sent the form by means of registered mail, you can attach the registered mail slip.
What happens next?
The CCMA will confirm receipt and will notify you if any proof of notification is outstanding. The body will then schedule a hearing date and notify all the relevant parties of it. We strongly recommend making use of our expert CCMA advice and professional representation to avoid pitfalls. The CCMA appoints a commissioner, who is responsible for making a decision on the case, which must be resolved within 30 days. The commissioner has the responsibility of creating a conciliation strategy that includes information gathering and mediation. Once the dispute has been heard, the commissioner provides a certificate that stipulates the dispute resolution outcome.
Contact us at reception@www.allardyce.co.za or on (011) 234 2125 for professional legal advice and assistance regarding CCMA hearings.
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.
