Approaching the CCMA for assistance
The Commission for Conciliation, Mediation and Arbitration (the CCMA) is a dispute resolution body which was established in terms of the Labour Relations Act 66 of 1995 (the LRA) and was one of the first key organizations established under the new democratic Republic of South Africa.
What the CCMA can assist with
If you are an employee in dispute with your employer, or vice versa, over a matter such as:
- wages and working conditions;
- workplace changes; or
you may want to ask the CCMA to conciliate or even arbitrate your dispute.
What the CCMA cannot assist with
The following disputes cannot be referred to the CCMA:
- where an independent contractor is involved;
- where the dispute does not deal with an issue in the Employment Equity Act 55 of 1998 (EEA);
- where the dispute does not deal with an issue in the Basic Conditions of Employment Act 75 of 1997(BCEA);
- where a bargaining council or statutory council exists for that sector; and
- where a private agreement exists for resolving disputes (for example: private arbitration).
Steps for referring a dispute at the CCMA
Step 1 – following the CCMA time limits to referring a dispute
If there is a labour issue, it is very important that you take steps immediately. In the case of an unfair dismissal dispute, you have only 30 days from the date on which the dispute arose to open a case, if the case is an unfair labour practice, you have only 90 days and, with discrimination cases, you have six months.
Where the time limits have not been followed, a person may still refer a dispute to the CCMA. This will have to be done through a condonation application. A condonation application is where a person explains why their referral is outside of the normal time limits, if there is any prejudice to the other side and any other important information that may be relevant to the CCMA. However, it is always better to follow the appropriate time limits when referring a dispute as this makes the CCMA process a little easier.
A referral to the CCMA is done using their referral forms. All relevant information must be put in these forms, such as:
- name of the parties;
- addresses of the parties;
- date the dispute arose;
- what type of dispute is it? For instance is it, unfair dismissal, discrimination or unfair labour practice etc.?
- some information regarding the dispute; and
- what time of outcome you are looking for?
Step 2 – serving a copy of the referral to the other side
Once the referral forms have been completed, you need to ensure that a copy is delivered to the other party. This can be done by delivering the forms in in person, by fax or by email. It is important to show that a copy was sent. The other party must confirm having received the documents.
Where a fax is sent, you must keep the fax transmission slip. If the documents are sent by registered mail, you must keep the postal receipt. If the documents are sent by courier, you must keep the proof. Where the documents are delivered in person, you must ask the person receiving it to sign for it. Where the documents are sent via email, ask for a read receipt.
Step 3 – sending the referral forms to the CCMA
Where there is proof that the documents were sent and received by the other part, you may email the CCMA the referral forms and the proof that the documents were sent and received.
You do not have to bring the referral form to the CCMA in person. The documents may also be faxed or posted it. It is always better to email or fax, as there will be a copy on your side when this was done. The CCMA receives a lot of referrals per month. Where the documents are posted, it makes it difficult to know if the CCMA received it and where that was.
Step 4 – the CCMA will contact you regarding conciliation
The CCMA will inform both parties as to the date, time and venue of the first hearing. Usually the first meeting is called conciliation. Only the parties, trade union or employers’ organisation representatives (if a party to the dispute is a member) and the CCMA commissioner will attend. In certain instances (where the commissioner agrees), legal representatives may be present for conciliation. The purpose of the hearing is to reach an agreement acceptable to both parties.
The conciliation process is without prejudice, meaning that all discussions or negotiations which take place at conciliation may not be used at arbitration if the dispute is not resolved at conciliation.
If the dispute is settled, a settlement agreement will be drawn up at conciliation which will record the terms and conditions of the settlement agreement. If the terms and conditions of the settlement agreement are breached, then either party may apply to the CCMA to certify the settlement agreement as an arbitration award.
If there is no agreement that is reached, the commissioner will issue a certificate to that effect. Depending on the nature of the dispute, the case may be referred to the CCMA for arbitration or the Labour Court as the next step. If the matter is referred to the Labour Court, the CCMA will have no further involvement unless directed to by the Labour Court.
Step 5 – the arbitration
In order to have an arbitration hearing, you must complete a request for arbitration form. Again, a copy must be served on the other party using the acceptable methods of serving documents as above.
Arbitration should be applied for within three months from the date on which the commissioner issued the certificate.
Arbitration is a more formal process and evidence, including witnesses and documents, may be necessary to prove your case. Parties may cross-examine each other. Legal representation may be allowed. The commissioner will make a final and binding decision, called an arbitration award, within 14 days.
Step 6 – complying with the arbitration order
If a party does not comply with the arbitration award, it may be made an order of the Labour Court. This will be done by applying to the Labour Court to make the arbitration award an order of court.
Where the other party still does not comply, they are in breach of a court order and that has serious implications for them.
The CCMA was established to promote social justice and equality in the workplace. Its primary objectives is to reverse any wrongdoings, illegal behaviour, unlawful activity and transgressions by an employer. In order to get assistance from the CCMA, it is important to follow their time limits and be present when you are requested to attend.
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