Written by: Zinita Lottering
What is the Commission for Conciliation, Mediation, and Arbitration (CCMA)?
In South Africa, workplace disputes often arise between employees and employers, impacting productivity, morale, and overall business integrity. To address these issues fairly and effectively, the Labour Relations Act 66 of 1995 established the Commission for Conciliation, Mediation, and Arbitration (CCMA). The CCMA is an independent statutory body that promotes constructive and just solutions to various employment-related conflicts.
What Is The Purpose and Function Of The CCMA?
The CCMA was established under Section 112 of the Labour Relations Act. Its mission aligns with the Labour Relations Act’s goal of advancing social justice, labour peace, whilst promoting employee participation in decision-making within the South African workplace. According to Section 115(1) of the Labour Relations Act, the CCMA must:
- Attempt to resolve any dispute referred to the CCMA under the Labour Relations Act through conciliation.
- Consider referring the matter for arbitration if conciliation fails.
- Assist in the establishment of workplace forums.
- Compile and publish information and statistics about its activities.
- Review any rules made under this section at least every second year.
In What Matters Can The CCMA Rule and Assist You?
The CCMA can assist in matters relating to:
- Unfair dismissals;
- Unfair labour practices, including demotion, promotion or unfair suspension;
- Unfair discrimination in the workplace;
- Non-compliance with the CCMA or Bargaining Council Award by parties;
- Retrenchments: The CCMA can handle retrenchments involving one employee through conciliation and arbitration. However, large-scale retrenchments are conciliated by the CCMA but referred to the Labour Court for arbitration.
What Disputes Should Be Referred To Other Bodies?
Disputes that should be referred to other bodies include:
- Non-payment of salaries or wages: referred to the Department of Labour
- Collective agreements: referred to the relevant bargaining councils
- Independent contractor disputes: referred to civil courts or Small Claims Court depending on the nature of the dispute.
Who Can Approach The CCMA?
Both employers and employees may refer a matter to the CCMA. According to Section 213 of the Labour Relations Act, an “employee” is defined as anyone, excluding an independent contractor, who works for another person or the state and is entitled to remuneration. The CCMA also provides valuable guidance on various labour-related topics for employers and employees.
How Do You Refer A Matter To The CCMA?
You can refer a matter to the CCMA by completing the Labour Relations Act Form 7.11 at your nearest CCMA office or online.
Information required to refer a matter includes:
- Your details: name, surname, ID number, contact details, address, length of service, salary, etc.
- Details of the other party.
- Nature of the dispute: brief details of the dispute, fairness of the dismissal, and desired outcomes (reinstatement, reemployment, or compensation).
- Whether discrimination was involved.
- Declaration: an acknowledgement that the information provided is true and correct.
The aforementioned form should be delivered to the other party (usually the employer) by hand, email, fax, or registered post. After delivery, the completed form with proof of service to the other party must be submitted to the CCMA by hand, email, or fax. The CCMA will contact both parties to the dispute within 30 (thirty) days of the referral to schedule a conciliation meeting.
Within What Timeline Should A Matter Be Referred To The CCMA?
A matter should be referred to the CCMA within the following timelines:
- Unfair dismissal: within 30 (thirty) days.
- Unfair labour practices: within 90 (ninety) days.
- Discrimination: within 6 (six) months.
If a referral is late, the aggrieved party can apply for condonation by providing reasons for the late referral. The CCMA will consider factors such as the extent of the delay, reasons for it, prospects of success, and possible prejudice to the other party. The CCMA will not hear the matter until the reasons for the late referral have been considered and excused or condoned.
What Is Conciliation?
Conciliation is a process that seeks a mutually acceptable agreement without legal representation. However, trade union representatives or representatives from registered employers’ organisations may participate, as conciliation aims to reach a mutually acceptable agreement without involving third parties.
If no agreement is reached, the Commissioner issues a certificate of no outcome, allowing the aggrieved party to refer the matter to arbitration or the Labour Court. The party has 90 days from the issuance of the certificate to complete the Labour Relations Act Form 7.13 for arbitration referral.
What Is Arbitration?
A pre-arbitration meeting is usually held before the arbitration to identify disputed facts and issues that must be decided by the commissioner and allow both parties to exchange documents and information that will be used in the hearing, such as evidence and witnesses’ information. During arbitration:
- Representation: Parties may be represented by a director, employee, trade union member, or registered employers’ organisation representative. Legal practitioners are generally only permitted with the commissioner’s consent and agreement from the other party.
- Proceedings:
- Introductions: All parties will introduce themselves for the record.
- Opening Statements: Each party’s opening statement should set out the background or sequence of events, the purpose of referring the matter to the CCMA, and their desired outcome.
- Evidence: Each party will have the opportunity to question, cross-examine, and re-examine witnesses (who will testify under oath) and refer to the evidence contained in the bundles prepared by both parties.
- Closing Statements: Closing statements should outline discrepancies in the other party’s testimony, what facts were testified to prove or support their case, and the motivation for the outcome requested by the specific party.
The commissioner will conclude and decide on an appropriate award in the dispute and will provide the parties with a final and binding decision within 14 (fourteen) days of arbitration.
What Does A Review And Rescission Include?
A Labour Court review may be sought if there are allegations of commissioner misconduct, gross irregularity, abuse of power, or an improper award. Alternatively, the CCMA may rescind an award if it contains errors or omissions or if a decision was made without the presence of an affected party.
Any aggrieved party should bring the relevant application within 14 days of becoming aware of the award. If the application is late, the aggrieved party must apply for condonation.
What Is A Default?
If a party fails to comply with an arbitration award issued by a commissioner, the party in whose favour the award was made can apply for certification of the award by completing Labour Relations Act Form 7.18. Once the award has been certified, it can be enforced by executing against the defaulting party’s property through the Sheriff of the Court in the Magisterial district where the defaulting party resides or conducts business. Non-monetary awards may require contempt proceedings in the Labour Court.
Need Expert Assistance With a CCMA Matter? Contact Burger Huyser Attorneys Today
The CCMA plays a crucial role in promoting fairness, clarity, and stability in the South African labour market. By facilitating processes like conciliation, arbitration, and dispute resolution, the CCMA empowers employees and employers to address workplace issues transparently and constructively. However, navigating the CCMA’s procedures, timelines, and regulations can be challenging, particularly in cases involving condonation, rescission, or complex arbitration processes.
If you require assistance with a CCMA matter, or if you are unsure of your rights and responsibilities under the Labour Relations Act, or need support through the CCMA process, contact Burger Huyser Attorneys. Our experienced labour lawyers in South Africa is here to support you every step of the way, ensuring your case is handled effectively and in alignment with your best interests. Schedule an appointment with one of our expert CCMA labour law attorneys today or for contact us for immediate assistance on the numbers below:
Randburg call 061 516 6878; Roodepoort call 061 516 0091; Sandton call 064 555 3358; Pretoria call 064 548 4838;
Centurion call 061 516 7117; Alberton call
DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE
