The CCMA – what's it all about?

Everyone has heard of the CCMA. But what's it all about? Is it just for employees to enforce their rights against nasty employers? Or does it have other functions? This article aims to demystify the CCMA. We will look at the underlying legislation, rationale, and legal principles applicable to the CCMA.

Rights of employees

Every employee has the right to be treated fairly at work. For instance, he/she may not be unfairly dismissed or forced to work overtime. The Commission for Conciliation, Mediation and Arbitration, better known as the CCMA is an independent authority that was established to enhance workers' rights and resolve labour disputes. The CCMA was created by theLabour Relations Act.

NOTE: Though we focus on the rights of individual employees in this article, the CCMA is also empowered to intervene in collective labour matters, such as strikes and lockouts.

What disputes can the CCMA adjudicate?

One can bring most disputes involving workers to the CCMA, including the following:

• Unfair dismissals
• Unfair labour practices involving promotion, demotion or unfair suspension
• Unlawful discrimination

Disputes the CCMA will not adjudicate

Not all workplace disputes can be referred to the CCMA. In terms of the Act, the CCMA may not adjudicate the following disputes:

• Disputes over the non-payment of salaries (below a certain threshold). These disputes must be referred to the Department of Labour.

• Disputes covered by Collective Agreements, Bargaining Councils, or private dispute resolution bodies.

• Disputes involving "independent contractors" (who are not considered employees under the Act).
• Retrenchments involving more than one person. The CCMA will try to mediate such retrenchments, but if it fails to resolve the dispute, it will refer the case to the Labour Courtfor Arbitration.

Time limits for lodging a dispute

There are strict periods within which one may lodge a dispute at the CCMA. The period varies depending on the type of dispute involved.

• For an unfair dismissal, one must refer it to the CCMA within 30 days from the date of the dismissal.
• For unfair labour practice, one must refer it to the CCMA within 90 days from the date of the dispute.
• For unfair discrimination, one must refer it to the CCMA within six months from the date of the dispute.

NOTE: When counting the periods referred to above, include weekends and public holidays.

Should you fail to lodge the dispute within the required period, you can apply for acceptance of the late filing. That is, you can explain to the Commissioner in writing why the application was late. If he is satisfied with your reason, he will accept the application.

How to lodge a dispute at the CCMA

The process of lodging a dispute at the CCMA is reasonably straightforward. You complete Form 7.11, and email it, fax it, hand-deliver it, or post it (registered mail) to your employer. Once you have delivered the Form 7.11 to your employer, you will send the completed form and proof of delivery to the CCMA by email, fax, or hand delivery. The CCMA will then contact you and your employer within 30 days to inform you of the date, time, and venue of the first hearing at the CCMA.

Proceedings at the CCMA: Conciliation & Arbitration

There are two stages to dispute resolution at the CCMA. The first stage is called conciliation. At this stage, an officer of the CCMA (the Commissioner) tries to mediate a solution of the dispute. He does not have the authority to rule on the matter. If the parties are unable to resolve their dispute by conciliation, the dispute is referred to stage two – Arbitration, which is like a civil court case. Let us look in more detail at these two stages of the proceedings at the CCMA.

Stage 1 - Conciliation

During the conciliation stage, the Commissioner facilitates a negotiation between the parties to try to resolve the dispute. He/she does not have the power to decide which party wins the case. He/she can only make suggestions and assist the parties to arrive at a settlement.

Attorneys may not represent parties at the conciliation. The parties may, however, be represented by a trade union official or an official from an employers' organisation.

If the parties are unable to resolve the dispute, the Commissioner issues a "certificate of no-outcome". The parties may then refer the case to Arbitration (stage two).

If the dispute concerns an unfair dismissal of an employee on probation, then a so-called "con-arb" will be held. This means that the Commissioner will conduct the Conciliation and the Arbitration on the same day.

Stage 2 - Arbitration

To refer the case for Arbitration, you must complete Form 7.13, within 90 days of the issue of the "certificate of no-outcome".

The procedure at the Arbitration hearing is like a trial in a civil court, although less formal. Under certain circumstances, parties may be represented by attorneys and advocates. The stages in the proceedings are as follows:

• Each party each makes a short opening statement explaining their case
• Each party gives evidence and calls their witnesses to testify
• Each party may cross-examine the other party and their witnesses
• After all the evidence has been led, each party makes a short closing statement
• The Commissioner then makes his ruling. He has up to 14 days within which to make his decision, which he will deliver in writing. The Commissioner can award monetary compensation, or reinstatement, amongst other remedies.

Enforcement of the CCMA ruling

The judgment of the CCMA is final and binding and may be made an order of the Labour Court. However, The Director of theCCMA must certify the judgement before it can be enforced.

Can one appeal the decision of the commissioner?

You cannot appeal the decision of the Commissioner on the basis that his/her decision was wrong (as with most court cases). You can only take the Commissioner's decision on Review. This means you can complain about how the Commissioner came to his decision. For the Review to succeed, you must prove the Commissioner was guilty of one or more of the following actions:

• That he/she committed misconduct concerning his/her duties.
• That he/she committed a gross irregularity in the conduct of the proceedings.
• That he/she exceeded his/her powers; or
• That he/she made the award improperly.

As this is a complex legal matter, we suggest you discuss it with your Legal & Tax Advisor if necessary.

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