Petzer, Du Toit & Ramulifho

A client related to us her total bewilderment at the thought of attending a case at the CCMA (Commission of Conciliation, Mediation and Arbitration) on her own. She literally begged one of our legal practitioners to accompany her to her conciliation hearing. We then realised that the process of the CCMA leaves the ordinary man / woman in the street confused and scared. I have listed a few easy steps to follow to ensure that you become familiar with the processes. It must be noted that the CCMA was developed to provide relief to the ordinary worker by ensuring that a solution to his/her problem is accessible, affordable and efficiently dealt with.

Step one: Consider Jurisdiction

Check whether the dispute is covered by the CCMA and not by a bargaining council or the Department of Labour. An example is that the Department of Labour and not the CCMA deals with the entitlement to outstanding salary in terms of the Basic Conditions of Employment Act. You must also ensure that you fall within the definition of an employee in terms of the Labour Relations Act.

Step two: Referral

As a general rule, you should avoid late referrals. In terms of Section 191(1) of the Labour Relations Act 1995, dismissal disputes have to be referred within 30 days of the dismissal. The 30-day period is ordinary calendar days, and the date of dismissal is the date when the ‘cause of action’ arose. Where a referral is late the applicant must apply for condonation in terms of CCMA Rule 5.3.

Step three: Filling in forms

Ensure that LRA Form 7.11 is completed correctly. You must ensure that you name the employer correctly and that you complete all sections of the referral form. You must ensure that you sign the form and serve the referral on the respondent, and attach proof of service and send it to the CCMA. After you have filled in the necessary form at the CCMA, you will receive a document called the “notice of set down.” This will inform you of the date when your hearing will be heard. The term Con-Arb might appear. It basically refers to the two separate processes of conciliation and arbitration occurring on the same day. If you object to this process you need to inform the employer and the CCMA.

Step four: Conciliation

Conciliation is an informal process in which an independent third party (usually the commissioner) will attempt to assist the parties in dispute to reach an agreement. It has been proven to be the quickest and most inexpensive way of settling a dispute. I would advise most employees to follow this route and go into the process with an open mind. The only time when I would advise a deviation from this route is when hostility is so great that any form of settlement might rob you of your dignity especially in cases of sexual harassment or constructive dismissal. This entire process is done without prejudice to either party. This means that statements that have been made at conciliation cannot be used at any subsequent proceedings, unless according to Section 135 (3) of the LRA, the parties have agreed to it in writing. The procedure that most commissioners normally follow is that he/she would attempt to mediate the dispute usually by conducting a fact-finding exercise. In terms of Section 135 (4) of the Labour Relations Act, the following list of people may be present at a conciliation: - a party to the dispute may appear in person or be represented only by a director or employee of that party or any member, office bearer or official of that party’s registered trade union or registered employers’ organisation. Once the process has ended, the commissioner would provide an “outcomes certificate” which would indicate whether the dispute has been settled or not. If it is settled, the commissioner would indicate what the terms of settlement are on the outcomes certificate.

Step five: Arbitration

The CCMA will only arbitrate if a party makes a request for arbitration. The request is usually made by filling in the CCMA form LRA 7.13. One has to attach the outcomes certificate that was issued to you at conciliation to this form.

Arbitration is a more formal process, and the arbitrator must make a determination of the outcome of the dispute in the form of an award after hearing the evidence.

It must be noted that the CCMA does not have jurisdiction to arbitrate (unless the parties agree) where it is an unfair discrimination dispute and where it is a dismissal due to operational requirements, only the Labour Court has jurisdiction to entertain these issues.

If you need any assistance or advice, feel free to contact our Lesley Ramulifho at 012 342 9895 / 073 207 9714 or Lesley@legaledge.co.za.