Arbitration

Question: What would I do if the dispute remains unresolved at a conciliation process?

You may request the CCMA to resolve the dispute by arbitration. At an arbitration hearing both parties would be given the opportunity to fully state their side of cases where the commissioner would issue an award which is legally binding on both parties.

Question: What is the time frame to refer arbitration to the CCMA?

According to s136 (1) (b), a party must request the commission to arbitrate a dispute within 90 days from the date on which the commission has issued the certificate that the dispute has not been resolved.

Question: Which form should the referring party use to refer a dispute for arbitration?

Rule 18 of the CCMA Rules stipulates that a party must use the LRA form 7.13 to refer a dispute for arbitration.

Question: What notice period must the CCMA give of arbitration meeting?

Rule 21 of the CCMA Rules provides that the commission must give the parties at least 21 days notice, in writing, of an arbitration hearing, unless the parties agree to a shorter period.

Question: Can I be represented at the arbitration hearing?

Rule 25 of the CCMA Rules provides that in an arbitration hearing a party may appear in person or be represented by a legal practitioner, a director or fellow employee, office- bearer or official of the party’s registered trade union or registered employer’s organisation. However, if the dispute being arbitrated is about the fairness of a dismissal and a party has alleged that the reason for the dismissal relates to the employee’s conduct or capacity, legal representation is not automatic. Legal practitioners are only allowed in the proceedings unless:
  • The commissioner and all other parties consent; or
  • The commissioner concludes that it is unreasonable to expect a party to deal with the dispute without legal representative.

Question: Under what circumstances can the commissioner consider a...

Question: Under what circumstances can the commissioner consider a legal practitioner to represent me?


The commissioner should consider the following: 

  • The nature of the questions of law raised by the dispute,
  • The public interest,
  • The complexity of the dispute, and
  • The comparative ability of the opposing parties or their representatives to deal with the dispute.

Question: How long does it take to receive the outcome of the arbitration?

Section 138 (7) provides that an arbitration award must be issued within fourteen days of the conclusion of the proceedings. The director may extend this period on good cause shown.

Question: What would I do if I am not satisfied with the award?

Section 145 of the LRA states that any party to the dispute who alleges a defect in any arbitration proceedings may apply to the Labour Court within six weeks for an order setting aside the award. The Labour Court may stay the enforcement of the award pending its decision.

Question: What must I do if the employer failed to comply with the award?

An employee may enforce the award as if it was an order of the Labour Court if the director has certified it.

Con-Arb

Question: What is Con/Arb?

It is a one-stop process where Conciliation and Arbitration takes place on the same day. Section 191 (5A) makes provision for this.

Question: Is it a compulsory process?

In terms of s 191 (5A) the process is compulsory for dismissal and unfair labour practice disputes relating to probation.

Question: Can I object to the process of Con/Arb?

If the dispute is one in which Con/Arb is not compulsory, any party to the dispute may object to the process by giving notice to the CCMA and the other party, at least 7 days prior to the scheduled date (Rule 17). Parties have no legal obligation to provide reasons for the objection.

Question: What are its advantages?

Con/Arb promotes the principle of speedy resolution of disputes in that the matter is finalised in one day. It is cheaper than the separate Conciliation and Arbitration process, with regards to costs that may be incurred by the parties.

Question: What notice must the CCMA give of a Con/Arb meeting?

The CCMA must give parties at least 14 days notice in writing.

Question: Is legal representation compulsory at Con/Arb?

According to Rule 17 (6) in a Con/Arb process a party may be represented by a legal practitioner; a director or employee of that party or a trade union official. If the dispute concerns an alleged unfair dismissal relating to conduct or capacity, legal representation is not automatic (Rule 17 (7)

Question: What happens if Arbitration does not take place on the same day?

If there is an objection to Con/Arb and the matter remains unresolved, a certificate of non-resolution will be issued. The applicant must then apply for arbitration. This fact was confirmed in the leading case of Ceramic Industries Ltd v CCMA & Another (2005) 12 BLLR 1235 (LC), where it was held that if a party objects to Con/Arb the whole process is then switched to the old regime.

Question: Is legal representation compulsory at Con/Arb?

According to Rule 17 (6) in a Con/Arb process a party may be represented by a legal practitioner; a director or employee of that party or a trade union official. If the dispute concerns an alleged unfair dismissal relating to conduct or capacity, legal representation is not automatic (Rule 17 (7)

Facilitation (Section 189A)

Question: What is meant by facilitation?

Facilitation is the process that is conducted by the CCMA when the employer intends retrenching large scale of its employees.

Question: Which referral form should I use to apply for facilitation process?

The party must use the LRA 7.20 form.

Question: When should the CCMA conduct the first facilitation meeting?

Regulation 2 of the conduct of facilitations in terms of section 189A provides that the Commission must notify the parties in writing no later than seven days of receiving the LRA 7.20 form. The following should be included in the notification:

The name of the facilitator; and
After consulting the parties, the date of the first facilitation meeting.

Question: How much do I have to pay when requesting facilitation process in terms of section 189A?

There are no fees regulated as yet, however, subsection 6 (c) of section 189A stipulates that the Minister may, after consulting with the Commission and NEDLAC make regulation relating to the circumstances in which the Commission may charge for appointing the facilitator.

FAQ: Facilitation (Section 189A) Question: Can we strike or refer the matter to the labour court?

According to section 189A (7) (b) if a facilitator is appointed and 60 days have elapsed from the date on which the notice was given, a registered trade union or the employees who have received the notice for dismissal may either:

I. Give the notice of a strike in terms of section 64 (1) (b) or (d), or
II. Refer a dispute the fairness of a dismissal to the Labour Court.

In Limine

Question: When do I get the outcome of an in limine hearing?

All rulings must be served on the parties to the dispute within 14 days of the conclusion of the case.

Question: What is an 'in limine' hearing?

It is a preliminary hearing on a specific legal point relating to jurisdiction prior to getting into the merits of the case. Some of the preliminary issues are so important that the determination of the point will dictate whether the dispute referred proceeds or falls away. Condonation, joinder and substitution are some of the preliminary issues that may be raised.

Question: What is a condonation hearing?

There are various time frames to refer a dispute to the CCMA. For instance, an employee must refer a dismissal dispute within 30 days of the dismissal. For unfair labour practices it is 90 days. Should a party refer a dispute outside the required time frame, it should ask the CCMA to condone its late referral. This condonation application must be supported by an affidavit and address aspects such as the degree of lateness, the reason(s) for the delay, prospects of success and prejudice to both parties. The CCMA can deal with the application on papers or ask parties to come and argue their case in a condonation hearing.

Question: Is legal representation allowed at in limine hearings?

Yes. A point in limine requires a procedural ruling based on evidence and/or legal arguments.

Question: What if I am not happy with the outcome?

Rulings have the same status as arbitration awards. They are final and binding. A party who is not satisfied with the outcome may apply for rescission or review at the Labour Court.

Question: What form do I complete?

There are no promulgated forms, however, CCMA rule 9 (4) indicates that the CCMA may assist a referring party when making an application. Standard application forms have been put together by the CCMA in this regard.

Rescission

Question: What happens if I am out of time to apply for rescission?

CCMA rule 35 indicates that the CCMA may condone any failure to comply with the time frames outlined in the rules, on good cause shown. The affected party will have to apply for condonation.

Question: What is the time frame to apply for rescission?

An application for the rescission of an award or ruling must be made within 14 days of the date on which the applicant became aware of:

  • the award or ruling,
  • a mistake common to the parties

Question: What is a rescission application?

It is an application to have an arbitration award or ruling overturned or annulled. The ruling or award may be rescinded on the commissioner’s own accord or, on application by any affected party.

Question: What are the grounds to apply for rescission?

  • If the award or ruling was erroneously made in the absence of any party,
  • If there is an ambiguity or an obvious error, but only to the extent of that ambiguity or error, and
  • If the award or ruling was granted as a result of a mistake common to the parties.

Question: What is the effect of a rescission ruling?

It is final and binding. Any party who is not satisfied with it may have it reviewed by the Labour Court.

Question: How do I apply for rescission?

There are no promulgated forms but the CCMA has put together a standard application form. The application must be supported by an affidavit, a copy of which must be send to the other party and to the CCMA with proof of service.