Please note that since this book was last published in 1997 some of the laws that have been referenced may have changed. We
are doing our best to update the articles, however, it is advisable that you to consult an attorney before relying on any information contained herein.
What labour matters can the CCMA hear?
The CCMA has jurisdiction throughout South Africa. This means it can hear labour matters from any part of South Africa.
The CCMA’s serves mainly as a dispute-resolution body, but it also assists employees and employers with establishing collective bargaining structures, internal disciplinary procedures, affirmative action programmes, dealing with sexual harassment in the work place, work place restructuring, playing an advisory function, overseeing union ballots when requested and publication of guidelines.
What can’t the CCMA hear?
The CCMA cannot hear a matter where the aggrieved person is not an employee (i.e. when the aggrieved party is an independent contractor). It cannot hear a matter where a private agreement has already been made to deal with disputes. It cannot hear a dispute over non-payment of salary or wages. It cannot hear matters where a bargaining council or statutory council has been set up for that particular sector and it cannot hear matters that do not deal with labour disputes in terms of the Labour Relations Act and the Basic Conditions of Employment Act.
Before approaching the CCMA..
Before referring a dispute to the CCMA the parties must attempt to resolve the dispute on their own, by using internal company procedures that have been provided to resolve workplace disputes. The parties must exhaust these internal procedures and only approach the CCMA once these procedures cannot produce an amicable solution.
How to approach the CCMA (Procedure)..
First, a party refers a dispute for conciliation to the CCMA. To refer the matter for conciliation, a party only has to fill out an LRA Form 7.11(CCMA Referral Form). The form must state the nature of the dispute and the desired outcome the party requires. Only the employee himself can sign the form. Another employee can’t sign on behalf of another, even if they are both parties to the same dispute. A legal practitioner or a union official can also sign the form.
Once the form has been filled out, a copy of the form must be delivered to the other party. The form can be hand delivered or even faxed, as long as some sort of proof exists that the form was delivered to the other party (registered post and courier service are also allowed). After delivering the form to the other party, a copy must also be sent to the CCMA with the proof that the other party received a copy. The CCMA will then notify both parties of the time, place and date of the first hearing.
If the dispute concerns an unfair dismissal, then it must be referred to the CCMA within 30 days of the dismissal.
If the dispute concerns an unfair labour practice, it must be referred to the CCMA within 90 days of the act of unfair labour practice.
If the parties do not refer the matter within the required time frame, the parties can apply for condonation.
Conciliation is when a commissioner is appointed to resolve the dispute. The commission has 30 days to bring about a solution. The procedure is very informal. Only the parties to the dispute may appear before the commissioner. An employee or director or member of a party can appear on behalf of a company.
The commissioner will meet with the parties and try bringing about an agreement. He will ask each party to explain their side and what they think can be done to solve the dispute. The commissioner will give suggestions and mediate between the parties to obtain the best possible outcome for both parties. He does not make a ruling on his own but rather helps the parties to find their own solution.
If conciliation is successful the commissioner will give the parties a certificate stating the dispute has been resolved. This will bring the matter to an end, and no party can pursue the matter any further. If the conciliation is not successful then the dispute is referred to arbitration.
Arbitration is when an arbitrator makes a decision that is final (the parties don’t reach a decision together like in conciliation). This decision is called an award. When an arbitrator is appointed to arbitrate over the dispute, he will ask the parties to retell their sides of the dispute. The parties can bring documentary evidence, call witnesses, question each others witnesses and give closing arguments.
The award granted by the arbitrator is final and binding and has the same status as an order of court if it is certified by the CCMA director. No appeal is allowed against an award granted by the arbitrator. Only the Labour Court can review an award given by the arbitrator, if an irregularity has occurred or gross misconduct by the arbitrator or the commissioner has exceeded his powers. A party has six weeks to file for a review to the Labour Court.
The parties can appear in person, at the arbitration proceedings or in the case of a company a director or employee will all appear on their behalf. A party can also be represented by an attorney or advocate, but if the matter is a dismissal dispute then a legal practitioner cannot represent the parties unless the commissioner granted an application for legal representation.
Sometimes an employer will request the CCMA to hold a pre-dismissal arbitration hearing. This will only be allowed if the employee agrees. The pre-dismissal hearing takes the place of an employer's disciplinary hearing. The CCMA must make a finding as to whether or not employee is guilty of misconduct or incapacity. The same procedure followed in a disciplinary hearing is followed in a pre-dismissal arbitration hearing. The dismissal must be for a fair reason and must be effected by a fair procedure.
Con-arb is a speedy procedure where the commissioner will first conciliate the dispute; if the dispute remains unresolved then on that same day the commissioner will immediately arbitrate.
Con-arb is the automatic procedure followed, unless the parties object within seven days.
Submitted by Cassandra Andreou, a candidate attorney at Routledge Modise in assocation with Eversheds.www.eversheds.co.za