An employee has gone to the CCMA – Now what?
Most employers are aware of the CCMA (Commission for Conciliation, Mediation and Arbitration), however, are unaware of what their rights and responsibilities are when an employee, or former employee, makes a referral of a dispute to the CCMA, and feel overwhelmed at the thought of approaching a legal forum without an attorney. The foundation of the CCMA is to provide an informal dispute resolution process without the need for the parties to incur expensive legal fees.
Here we touch on the basic principles of a CCMA referral, and what may be expected from an employer.
Backlog at the CCMA
Before we delve into the processes available at the CCMA, it should be noted that concerns have recently been raised that very significant budget cuts have seen the reduction in hours allocated to part-time commissioners (who handle the majority of conciliations) and will result in a severe backlog in resolution of matters. It is estimated that more than half of the commissioners working at the CCMA do so on a part-time basis. As mentioned below, conciliation is a cornerstone of the dispute resolution process and effectively renders the CCMA unable to operate fully. Until such time as further clarity is obtained on how these budget cuts may affect the operations of the CCMA, employers should be prepared that disputes may not be resolved as quickly as in the past, with some commentators suggesting that many may opt for private mediation in order to speedily resolve disputes, although in our opinion the associated costs are in contrast to the very purpose of the CCMA.
We will present further commentary on this issue as soon as same is available, and the below summary of processes could potentially change in light of this.
When and how can a matter be referred?
An employee, or former employee, may refer a dispute to the CCMA if they believe that:
- Their dismissal or retrenchment was unfair in that it took place without fair reason or did not follow certain required procedures; or
- There is a dispute regarding wages or working conditions, or a change in workplace conditions; or
- There is an allegation of discrimination.
The majority of referrals relate to a failure to follow proper procedure, irrespective of whether proper grounds to dismiss or retrench exist, and it is therefore important for employers to ensure that they obtain advise before taking decisive action.
An employee will have to complete a 7.11 form setting out their and the employers details, as well as the details of the dispute, serve the referral form on the employer and then lodge the form with the CCMA.
It is important to note that an employee has certain timeframes within which they may lodge a dispute, and if they fail to refer their dispute within this time frame, their referral needs to be accompanied by a condonation application, asking the CCMA to condone the later referral, and setting out the reasons why the referral was late. The employer will be entitled to oppose this condonation application. The CCMA will then consider the degree of lateness, the reasons for lateness, and prejudice to either party and make a ruling on whether the matter may proceed or not.
The time frames to lodge a referral are as follows:
- 30 days from the date of dismissal for an unfair dismissal claim;
- 90 days for an unfair labour practice referral; and
- 6 month for a discrimination claim.
The time frames above are calculated on ordinary calendar days (i.e. including weekends and public holidays), unlike other judicial bodies that work off a “court day” system, and the days are counted excluding the first day and including the last day.
What process will be followed?
The CCMA adjudicates disputes using three main processes:
- Con/Arb; and
Conciliation is the first step in resolving a dispute, and involved a commissioner meeting with parties in order to make an attempt to amicably settle the dispute. It is a more informal process and often involves quick and speedy resolution of disputes. The merits of the matter and evidence are not argued at this stage, and rather, attempts are made only to settle the matter. Legal representation is not permitted at this stage. Should the parties come to an agreement, the commissioner will assist the parties in drawing up and signing a settlement agreement recording the agreed terms. Should the parties not come to an agreement, the commissioner issues a Certificate of Non-Resolution, and the applicant then needs to apply to have the matter set down on a different date for arbitration.
Con/Arb is an amalgamation of conciliation and arbitration. In this process, should conciliation fail, the parties will immediately proceed to arbitration on the same date. This process is specifically required in matters relating to probation. If the CCMA sets a matter down for Con/Arb, an employer is able to object to this process (for matters other than probationary matters), by notifying their objection 7 days before the set down date. Many employers choose to lodge an objection in order to provide themselves with ample time to prepare for the arbitration. If they object to the Con/Arb process, the process will follow the ordinary route of a separate conciliation and arbitration.
Arbitration is a legally dispute resolution process. The commissioner will allow both parties to present their respective cases and evidence, as well as question and cross-examine witnesses. Parties may be have legal representation present, however, in terms of Rule 25 of the CCMA Rules, only certain circumstances permit legal representation (for example, in misconduct and incapacity matters legal representation is not automatically allowed). There are certain circumstances where the parties may agree to allow for legal representation (for example, where both wish to be represented), or application can be made to the commissioner (for example, based on the complexity of the matter).
After all evidence has been led, the commissioner will issue a binding ruling within 14 days.