Understanding The Arbitration Process at the CCMA

CCMA arbitration is the final dispute-resolution step in the process set out by the Labour Relations Act 66 of 1995: a dispute is referred to the CCMA after conciliation has failed, the parties exchange pleadings and bundles, a commissioner presides over a hearing at the local CCMA office, and the commissioner issues a binding arbitration award that can be enforced through the Labour Court. The hearing itself is comparatively informal — it is not a court proceeding — but the procedural rules (the Rules for the Conduct of Proceedings Before the CCMA) and the cross-examination dynamic are similar to the Magistrate’s Court, and legal representation is only allowed under section 138 of the LRA with the commissioner’s permission and on limited grounds (typically complexity, unfairness, or a question of law).

The practical reality is that the days before the hearing matter as much as the hearing itself: the bundle, the witness statements, and the notice-of-set-down compliance decide most outcomes. Candidates and employers who treat arbitration as a single day in front of a commissioner, rather than a structured preparation exercise, tend to lose on the procedural rules before the merits are ever heard.

What the CCMA Is and Where Arbitration Fits

The Commission for Conciliation, Mediation and Arbitration (CCMA) is a statutory dispute-resolution body created by the Labour Relations Act 66 of 1995 (the LRA). It exists to resolve workplace disputes quickly, fairly, and at a lower cost than litigation in the Labour Court. The CCMA resolves disputes through three routes: conciliation (a facilitated negotiation led by a commissioner), arbitration (a hearing at which a commissioner decides the dispute on the evidence), and (in some cases) a con-arb — a combined conciliation-and-arbitration held on the same day where the parties consent or the rules allow it. Arbitration is the route taken when conciliation has failed to resolve the dispute.

The CCMA’s jurisdiction covers unfair dismissals, unfair labour practices, wage disputes, and a defined list of disputes under the LRA; some disputes (for example, pure contractual claims outside the LRA’s scope) must instead go to the Labour Court. The substantive law applied at arbitration is the LRA itself (along with any sectoral determination, collective agreement, or BCEA provision that applies). The procedural rules are the Rules for the Conduct of Proceedings Before the CCMA, the consolidated version of which is published on SAFLII.

When Arbitration Is Triggered and How the Referral Is Made

Most disputes must first go through conciliation. The CCMA will not schedule an arbitration until the conciliation certificate (technically a certificate of outcome) confirms the dispute is unresolved. A small number of disputes can be heard on a con-arb basis — conciliation and arbitration on the same day — where the parties consent or the rules allow it. Con-arb is most common in straightforward misconduct dismissals where the parties want the matter finalised in a single sitting.

The referral itself is made by lodging the relevant CCMA form with the regional office that has catchment over the employer’s workplace:

• Form 7.11 — used for unfair dismissal and unfair labour practice disputes (the most common form);
• Form 7.13 — used for mutual interest disputes (for example, refusal to bargain);
• Form 7.15 — used for severance pay and certain other money claims.

The prescribed filing fee accompanies the referral (the CCMA’s schedule of fees is published with the CCMA Rules, and small claims and certain categories of dispute are fee-exempt). Once filed, the CCMA allocates the matter to a commissioner and confirms the conciliation date. Everything that follows — the statement of response, the bundle, the hearing — is governed by the CCMA Rules rather than the High Court or Magistrate’s Court rules.

The Procedural Steps Before the Hearing Day

The procedural steps between conciliation and the arbitration hearing are where most matters are won or lost. A typical sequence looks like this:

1. Conciliation outcome. Conciliation either settles the dispute (a settlement agreement is filed with the CCMA and becomes an order of the Labour Court) or fails (a certificate of non-resolution is issued).
2. Referral to arbitration. The referring party then refers the unresolved dispute to arbitration within the time frame set by the CCMA Rules — failing to refer in time is a complete bar to proceeding.
3. Setting down. The CCMA issues a notice of set-down allocating a date and venue; this is the procedural clock that drives all subsequent steps.
4. Pleadings and exchange. In dismissal disputes, the employer typically files a statement of response (essentially a plea) and the parties may exchange further pleadings if the commissioner directs.
5. Bundle preparation. Both parties compile a paginated bundle of evidence (documents, witness statements, policies, discipline records) and serve it on the other party and the commissioner in advance.
6. Pre-arbitration conference. Many commissioners direct a pre-arbitration meeting (sometimes called a “pre-hearing conference”) to narrow issues, confirm the bundle, and decide how the hearing will run.

Each of these steps has its own cut-off date and its own consequence for non-compliance. A late bundle, an unsigned witness statement, or a missing section 138 application can each knock the matter off the rails before any evidence is led.

The Arbitration Hearing Day

On the day of the hearing, the commissioner manages the process from start to finish. The hearing unfolds in a defined sequence:

1. Opening. The commissioner opens the record, confirms the issues for determination, and records the parties’ representatives — the parties themselves, an unrepresented representative (a union official or family member), or legal representatives where section 138 permission has been granted.
2. Applicant’s case. The referring party leads evidence: opening statement, witness evidence under oath (or affirmation), cross-examination by the other side, and re-examination.
3. Respondent’s case. The responding party then leads its own evidence on the same structure: opening, witness, cross-examination, re-examination.
4. Closing arguments. Oral arguments follow at the close of evidence, or written heads are filed after the hearing at the commissioner’s direction.

Commissioners manage the hearing actively. They admit or exclude evidence, limit cross-examination that doesn’t bear on the issues, and decide whether oral arguments are necessary or whether the record can be closed after the evidence. The hearing is informal compared to a High Court trial — witnesses are not strictly “viva voce” in the Magistrate’s Court sense — but the evidentiary mechanics are similar: documents are proved through witness evidence, leading questions are disallowed, and hearsay is generally inadmissible unless it falls within a recognised exception.

The Arbitration Award

The award is the commissioner’s written decision, made under section 138 of the LRA, and is issued after the hearing. Timing depends on the commissioner’s workload, but the rules require the award to be issued within a reasonable period. In practice, awards are usually issued within four to eight weeks of the hearing, but complex matters can take longer.

The award deals with two things: the merits (was the dismissal substantively and procedurally fair, was the unfair labour practice proved) and the remedy (reinstatement, re-employment, or compensation). In unfair dismissal cases, compensation is capped at 12 months’ remuneration, with a maximum of 24 months in exceptional cases. The commissioner also awards costs only in narrow circumstances — the default position is that each party bears its own costs.

The award is binding on the parties unless reviewed by the Labour Court on the grounds set out in section 145 of the LRA (typically misconduct by the commissioner, a gross irregularity in the proceedings, or an error of law). If the losing party fails to comply, the award can be enforced through the Labour Court under section 143 of the LRA.

Award stage	What happens	Source rule
Merits	Was the dismissal substantively and procedurally fair? Was the unfair labour practice proved?	LRA, Schedule 8 (Code of Good Practice) and item 2 of Schedule 8 read with section 188
Remedy	Reinstatement, re-employment, or compensation up to 12 months’ remuneration (24 months in exceptional cases)	Section 194 of the LRA
Review	Binding unless reviewed by the Labour Court on grounds of misconduct, irregularity, or error of law	Section 145 of the LRA
Enforcement	If not complied with, the award can be made an order of the Labour Court	Section 143 of the LRA

Legal Representation at CCMA Arbitration (Section 138)

Section 138 of the LRA sets the default rule: legal representation is only allowed at CCMA arbitration with the permission of the commissioner and on limited grounds. The commissioner must be satisfied that allowing legal representation would be necessary — not merely convenient — having regard to the complexity of the dispute, the question of law raised, or the unfairness that would otherwise result to a party.

Commissioners more readily grant legal representation in matters of genuine complexity (discrimination claims, automated unfair dismissal, large-scale retrenchments, complex point of law) than in straightforward misconduct dismissals. The test is applied case-by-case, and the discretion is the commissioner’s own — a section 138 application is not a formality and should not be treated as one.

The mechanics are straightforward but strict:

• The request must be made in writing, lodged with the CCMA and copied to the other party well before the hearing date.
• The request must be supported by a sworn affidavit setting out the grounds on which permission is sought.
• Late requests — those lodged after the cut-off date set by the commissioner or so close to the hearing that the other party cannot respond — are generally refused.
• The other party has the right to oppose the application and to file a replying affidavit.

If the application is refused, the party can either proceed unrepresented (often through a union official or a non-legal representative) or apply to the Labour Court to review the ruling. In practice, the section 138 application is the gating decision in any complex CCMA matter — get it wrong and the rest of the hearing is conducted without the lawyer in the room.

Burger Huyser Attorneys’ Labour Law practice fields section 138 applications as part of its CCMA representation work — under Specialist Consultant Marius Ferreira, the team prepares the supporting affidavit, anticipates the opposing party’s grounds for objection, and bundles the legal-representation point into the wider hearing preparation so it does not run on a parallel track.

Common Reasons Arbitration Goes Wrong Procedurally

Most failed CCMA arbitrations are not lost on the merits — they are lost on procedural compliance. The patterns recur frequently enough to be predictable:

• Missing the bundle cut-off. The commissioner can refuse to admit late documents, and a document that is not in the bundle is effectively excluded from evidence.
• Failing to attend the set-down date. The commissioner can dispose of the matter in the absent party’s absence, often by default award.
• Leading evidence that wasn’t in the bundle. Evidence not foreshadowed in the bundle is regularly excluded for unfairness to the other side.
• Failing to file the section 138 representation request properly and timeously. Late requests are generally refused, and the matter proceeds without the lawyer.
• Treating the hearing as a court trial. Commissioners routinely cut excessive cross-examination that does not bear on the issues, and parties who try to run the case as if it were a High Court motion lose goodwill with the commissioner early.

Practical Considerations: Timeframes, Costs, and Where to Get Help

Three variables drive most of the practical questions candidates and employers ask about CCMA arbitration: timeframes, costs, and representation.

Variable	What to expect
Timeframes (referral to award)	Typically three to six months from the conciliation certificate. Can run significantly longer where the matter is complex, where postponements are granted, or where the commissioner’s caseload is heavy.
CCMA filing fee	Modest and regulated by the CCMA Rules and the Minister’s tariffs. Small claims and certain categories of dispute are fee-exempt.
Representation costs	Vary depending on whether the party uses a labour law specialist, a trade union, or a Bargaining Council representative. Legal representation is by commissioner permission under section 138, not automatic.
Where to get help	CCMA matters are handled by Specialist Consultant Marius Ferreira, supported by the firm’s wider Litigation and Commercial teams where the matter overlaps into High Court or contractual issues.

Burger Huyser Attorneys’ Labour Law practice runs CCMA files from the head office in Linden, Randburg (49 First Avenue, 011 888 0246, after-hours 061 516 6878), with consultations available across the firm’s Gauteng-wide branch network — Sandton, Roodepoort, Bedfordview, Centurion, Pretoria, Alberton, and Midrand. An initial conversation will clarify the referral date, the bundle deadline, and whether a section 138 application is worth pursuing.

Frequently Asked Questions

How long does CCMA arbitration take from referral to award?

There is no fixed statutory period, but most arbitrations are resolved within three to six months of the conciliation certificate being issued, depending on the commissioner’s caseload, the urgency of the matter, and how many postponements are granted. Complex matters (mass dismissals, discrimination claims) generally take longer than straightforward misconduct arbitrations.

Can I bring a lawyer to a CCMA arbitration?

Legal representation is allowed only with the commissioner’s permission under section 138 of the LRA. The commissioner will allow it where the matter is sufficiently complex, where unfairness would otherwise result, or where a question of law is in issue. The request must be made in writing with a supporting affidavit, and ideally lodged before the hearing date.

Is the CCMA arbitration award final?

The award is legally binding on the parties, but it can be taken on review to the Labour Court under section 145 of the LRA — typically on grounds of misconduct by the commissioner, irregularity in the proceedings, or an error of law. A review is not an appeal; the Labour Court will not re-hear the facts.

What happens if the employer doesn’t show up at the arbitration?

The commissioner can proceed in the employer’s absence and may issue a default award, especially where the employee has made out a prima facie case. The employer can apply for rescission (the CCMA’s equivalent of setting aside a default judgment) but the threshold is the employer must show good cause and a reasonable explanation for the non-attendance.

What’s the difference between arbitration at the CCMA and a Labour Court trial?

CCMA arbitration is an informal, commissioner-led hearing under the CCMA Rules; the Labour Court is a formal court of record under the Labour Court Act. CCMA arbitrations focus on the fairness of the dismissal (procedural and substantive fairness tests), while the Labour Court mainly handles reviews of CCMA awards, disputes about bargaining rights, and other matters outside the CCMA’s jurisdiction.

Do I have to attend the arbitration in person?

Yes. The parties and their witnesses must attend the hearing at the CCMA office (or the venue directed by the commissioner). Failure to attend without a properly granted postponement risks a default award or a finding that the party has abandoned the dispute.

If you are an employee or employer facing a CCMA arbitration — whether unfair dismissal, unfair labour practice, or a section 138 representation question — talk to Burger Huyser Attorneys’ Labour Law team. The firm handles CCMA representation, disciplinary hearings, and Labour Court matters across Gauteng, with files run from the head office in Linden, Randburg (49 First Avenue, 011 888 0246, after-hours 061 516 6878) and the firm’s Sandton, Roodepoort, Bedfordview, Centurion, Pretoria, Alberton, and Midrand branches available for client consultations. An initial conversation will clarify the referral date, the bundle deadline, and whether a section 138 legal-representation application is worth pursuing.