The CCMA provides a variety of workplace dispute resolution, prevention and management services.
Preparatory steps
CCMA Suggestions
The following suggestions are made to assist respondents to prepare for arbitration in a way that facilitates effective dispute resolution. It is also aimed at preventing inappropriate and unnecessary disputes being brought to the CCMA. CCMA Rules on its practices and procedures, issued in terms of S115 (2)(a) of the Labour Relations Act 66 of 1995 (the LRA), are available and should be referred to for further information.
ARBITRATION
In principle some of the preparatory steps for conciliation also apply to arbitration, including – appropriate representation, being suitably prepared, avoiding postponements, and dealing with any preliminary / jurisdictional issues in advance.
An arbitration is a new hearing regarding the issue in dispute which led to challenged employer’s decision. A commissioner will consider the fairness of an employer’s decision based on the evidence presented and submissions made at the arbitration.
Section 138 of the LRA provides that-
- A commissioner may conduct an arbitration in a manner that he/she considers appropriate in order to determine the dispute fairly and quickly but must deal with the substantial merits of the dispute with the minimum of legal formalities.
- Subject to the discretion of the commissioner as to the appropriate form of the proceedings, a party to the dispute may give evidence, call witnesses, question the witnesses of the other party, and address concluding arguments to the commissioner.
Be open to settlement through conciliation – conciliation may still take place during the arbitration process, subject to willingness of the parties, as settlement through conciliation is a desirable option that ensures finalization of the dispute on terms agreed to by the parties.
Prepare submissions and forward statement of case. In appropriate circumstances, for example in complex disputes, the CCMA may order parties to file their statements of case that set out the material facts upon which the party relies and the legal issues that arise from the material facts. The statement of case should thus give information on the nature of the dispute, what is admitted and denied, and the evidence intended to be led. The statement of case must be delivered within the time-period set by the CCMA or the commissioner. The other party will then have an opportunity to respond to the statement of case by delivering what is known as an answering statement.
Preparation for arbitration should be linked to a consideration of the issues in dispute as contained in the referral form. It is important to compile all relevant documents that would be necessary in the determination of the dispute, including minutes of a disciplinary hearings, and make copies for the arbitrator and the applicant. Ensure submissions are bundled, numbered, clear and concise.
Hold a pre-arbitration conference – The Provincial Senior Commissioner, the Regional Senior Commissioner, or the presiding Commissioner may order the parties to hold a pre-arbitration conference or the parties may do so by agreement. This applies in matters where both parties are represented by a trade union, an employers’ organisation, a legal practitioner and/or a candidate attorney. In a pre-arbitration conference, the parties must try to agree on the issues specified in Rule 20(3) and file a minute signed by both parties setting out the facts on which the parties agreed or disagreed.
Where the parties agree to hold the pre-trial conference, it must be held at least fourteen (14) days before the scheduled arbitration hearing and deliver a copy of the minute of the pre-trial conference to the appointed Commissioner seven (7) days before the date of the arbitration hearing
Bring appropriate witnesses – ensure that appropriate witnesses are prepared and ready for the hearing, but avoid bringing unnecessary witnesses. Assist, where necessary, in enabling the applicant’s witnesses to attend the hearing. For example, an applicant may wish to call a former fellow employee as a witness and this person may be at work and not authorized to leave. In circumstances where persons identified as witnesses are not willing to attend the arbitration of their own free will, an option is available that a party wishing to call that witness may apply to the CCMA to issue a subpoena to cause that witness to attend. This option must be considered carefully and be used when it is absolutely necessary as there are costs likely to be incurred by the party requesting the issuing of a subpoena as well as a risk that a witness forced to attend proceedings might not be co-operative.
Ensure appropriate representation – In an arbitration hearing a party in dispute may appear in person or be represented only by:
- i) if the party is an employer, a director or employee of that party, or if it is close corporation, by a member of that close corporation;
- ii) any member of that party’s registered trade union or employers’ organisation, or an office bearer or official as defined in the LRA, of a registered federation of trade unions or registered federation of employers’ organisation;
iii) if the party is a registered trade union, any member of that trade union, or an office bearer or official as defined in the LRA and authorised to represent that party or an office bearer or official, as defined by the Act, of a registered federation of trade unions and authorised to represent that party; or
- iv) if the party is a registered employers’ organisation, any director or employee of an employer that is a member of that employers’ organisation or any official or office bearer, as defined in the LRA and authorised to represent that party or an office bearer or official, as defined by the Act, of a registered federation of employers’ organisations and authorised to represent that party.
A legal practitioner, a candidate attorney or an individual entitled to represent the party at conciliation is allowed to represent a party at arbitration, unless the dispute being arbitrated is about dismissal for misconduct, ill-health, or poor performance (incapacity), or is referred in terms of section 69(5), 73 or 73A of the BCEA. In such cases the parties and the Commissioner may agree to legal representation, or a party may apply to be represented following motivation on the basis of factors listed in Rule 25(1)(c). The Commissioner will then decide whether to allow for such representation.
In addition, Rule 25(6) allows for an application to be made by a party to allow a person, other than those referred to above, to represent a party at arbitration proceedings. The grounds for such an application are set out in Rule 25(6)(a) – (f) and need to be carefully motivated. No person representing a party before the CCMA, other than a legal practitioner or a candidate attorney, may charge a fee or receive a financial benefit for agreeing to represent that party.
Onus in dismissal disputes
Section 192 of the LRA provides that:
1) In any proceedings concerning any dismissal, the employee must establish the existence of a dismissal.
2) If the existence of the dismissal is established, the employer must prove that the dismissal is fair.
Order for payment of costs and / or arbitration fees
The Commissioner may order a party to pay costs to the other party according to requirements of law and fairness.
If a party is not represented by a legal practitioner or candidate attorney, the Commissioner may order the other party to pay the reasonable disbursements actually incurred of that party.
Legal fees may only be awarded if both parties were represented by a legal practitioner or candidate attorney.
Legal fees of R7000.00 (VAT inclusive) for the first day and R4700.00 (VAT inclusive) for each additional day of arbitration may be awarded. An award for costs in respect of a candidate attorney must be 50 percent of the amount set payable to a legal representative (see CCMA Rule 39 (5).
An arbitrator can decide whether or not to order an arbitration fee in matters where the dismissal is only procedurally unfair. This fee is set out in the Commission’s Tariff of Fees and is payable by the employer within fourteen (14) days of receipt of the award ordering payment of such a fee. Payment may be made by a bank guaranteed cheque, delivered to any of the CCMA’s offices, or by electronic transfer into the bank account of the CCMA.
Referring a Dispute
Referring a Dispute to the CCMA
If you are an employee in dispute with your employer, or vice versa, over a matter such as-
- dismissal,
- wages and working conditions,
- workplace changes, or
You may wish to refer a dispute to the CCMA. A registered trade union may also initiate this action on behalf of its member. You do not need the other party’s consent before referring a dispute to the CCMA.
Note: The following disputes cannot be referred to the CCMA-
- where the complainant against the employer party is an independent contractor,
- where the dispute does not deal with an issue arising from the Labour Relations Act (the LRA); the National Minimum Wages Act (the NMWA); the Employment Equity Act (the EEA); or the Basic Conditions of Employment Act (the BCEA). Disputes that arise in terms of the BCEA may be referred to the CCMA together with unfair dismissal disputes or unfair retrenchment disputes.
- If a bargaining council or statutory council exists for the sector in which that employer operates. In that case the dispute, other than unfair discrimination disputes, has to be referred to that bargaining council.
- where a private agreement exists between the parties regulating how their disputes should be resolved, for example: by private arbitration. In that case the parties in dispute have to follow the dispute resolution procedures that are contained in that private agreement (exceptions may apply, e.g. if the employer is expecting the employee to pay for the private dispute resolution).
Steps for disputes at the CCMA
Step 1: If you have a labour dispute, it is very important that you take resolution steps immediately as certain disputes have timeframes that have to be observed within which those have to be lodged. In the case of an unfair dismissal dispute, your referral must be made within 30 days from the date of dismissal, or if it is a later date, within 30 days of the employer making a final decision to dismiss or uphold the dismissal. For an unfair labour practice your referral must be made within 90 days of the date of the act or omission, and for discrimination cases you have six months from the date of the act or omission to refer your dispute (only the CCMA has jurisdiction to conciliate unfair discrimination disputes).
See the section under “Condonation” on circumstances under which a dispute referred outside of the stipulated timeframes may be excused.
Step 2: If you have decided to lodge a dispute, you need to complete a CCMA case referral form (also known as the LRA Form 7.11.). These forms are available from the CCMA offices, Department of Employment and Labour and the CCMA website. (http://www.ccma.org.za/Advice/CCMA-Referral-Forms). In addition, you may utilise the CCMA e-referral platform available on the #CCMAConnect digital platform.
Step 3: Once you have completed the form, you need to ensure that a copy is delivered to the other party in dispute and you must be able to prove that a copy was sent. Acceptable methods to prove that you have served the other party include faxing a copy (keep the fax transmission slip), sending it by telegram, telex or registered mail (keep the postal receipt), sending it by courier (keep proof) or delivering it in person (ask the person receiving it to sign for it or a statement confirming service signed by the person who delivered a copy of the document to the other party or left it at any premises).
If you utilise the e-referral platform, a copy of your referral will automatically be sent to your employer provided you have provided an accurate e-mail address.
Step 4: You do not have to bring a referral form to the CCMA in person. You may fax the form, post it, email it to the CCMA regional office under whose area your workplace falls or file it through the CCMA’s online referral platform. Make sure that a copy of the proof that the form has been served on the other party is attached to your referral form.
Step 5: The CCMA will inform both parties of the date, time, and venue of the first hearing of the dispute.
Step 6: Usually the first meeting is called conciliation. Only the parties, their trade union or employers’ organisation representatives (if a party to the dispute is a member) and the CCMA commissioner will attend that hearing. The hearing may also be conducted tele-phonically, or through an online platform such as Microsoft Teams (provided both parties have access to this platform). The purpose of the hearing is to find an amicable solution to the dispute and reach an agreement acceptable to both parties. Legal representation is not allowed in conciliation proceedings. For more information on this, see the section dealing with Conciliations.
Step 7: If no agreement is reached, the commissioner will issue a certificate to that effect. Depending on the nature of the dispute, this might be the end of the CCMA involvement in the matter or the dispute may be referred to the CCMA for arbitration or to the Labour Court as the next step. The commissioner will provide guidance if you are not sure about this.
Step 8: In order to have the dispute scheduled for an arbitration hearing, you have to complete a form requesting for arbitration, (also known as LRA Form 7.13.). A copy of that form must be served on the other party (same as in step 3). Arbitration should be applied for within 90 days from the date on of the conciliation hearing unless the conciliation hearing date was extended in writing by agreement of the parties in which case the end date of that extension would be used to calculate the 90-day period. However, if the referring party did not object to con/arb, the process that provides for arbitration to take place immediately after conciliation, arbitration will take place immediately following the conclusion of conciliation should the dispute not be resolved through conciliation. If the employer party had objected to con/arb, only the conciliation process will be conducted and the employee will be required to apply for arbitration.
Step 9: 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, which has to be issued to the parties by the CCMA within 14 days of the conclusion of that arbitration. For more information on this, see the section dealing with Arbitrations.
Step 10: If a party against whom an award was issued has not complied with that arbitration award, the successful party may apply that to the CCMA to certify the award for enforcement through a Sheriff of the Court.
CCMA Processes
The CCMA’s statutory functions, as set out in the Labour Relations Act, 66 of 1995 (LRA), are divided into those which are compulsory and those which are discretionary.
The CCMA’s compulsory statutory functions are to:
- conciliate workplace disputes;
- arbitrate certain categories of disputes that remain unresolved after conciliation;
- establish picketing rules;
- facilitate the establishment of workplace forums and statutory councils;
- compile and publish information and statistics about our activities;
- consider applications for accreditation and subsidy by bargaining councils and private agencies;
- provide support for the Essential Services Committee.
