Dealing with the CCMA
What is the CCMA?
The Commission for Conciliation, Mediation and Arbitration (CCMA) was established as an independent, apolitical dispute resolution body in terms of the Labour Relations Act (LRA), Act 66 of 1995 and is aimed at promoting fair practises and resolving labour disputes within the working environment.
Recent amendments in legislation that affects the CCMA
Recent amendments to the LRA aim to reduce the case load of the Labour Court and the CCMA, as well as create more stability within the labour market. However, the case load of the CCMA was bound to increase due to the effect of the CCMA’s increased power and the fact that it is a free service.
Amendments having the biggest effect on employers, are the expansion of the CCMA’s jurisdiction to include sexual harassment cases, as well as the arbitration of retrenchment disputes involving employers with less than 10 employees. This means that it is now easier and cheaper for an employee to refer a sexual harassment case.
An employee can refer a dispute to the CCMA on account of dismissal, wages and working conditions, unfair labour practises, workplace changes and discrimination. An employer has the right to either represent him-/herself at the CCMA, or be represented by an employers’ organisation registered with the Department of Labour.
I have received notice to attend a CCMA case – now what?
The employer will receive two documents from the CCMA regarding a case. First is the referral form (form 7.11), which states the reasons why this matter is referred to the CCMA, as well as what outcome the employee is seeking (in terms of compensation and/or reinstatement). The second document is the notice of set down and states the date, time and place of the proceedings, as well as what process that will be followed on the day. CCMA cases are held at the CCMA in your area or at your local Department of Labour in smaller regions.
It is vital to attend the CCMA case, as failure to do so can result in dire consequences. Should you not be able to attend, it is strongly advised that you contact the CCMA and make arrangements – it will then be on the discretion of the commissioner to reschedule or to continue with the proceedings in your absence.
There are three CCMA processes:
This is an informal and confidential process aimed at reaching an agreement to settle a particular dispute. In some circumstances the CCMA might first try to resolve the dispute telephonically.
This process is more formal than conciliation and is recorded. During arbitration the employer and the employee gets the opportunity to state their case before the commissioner in order to settle the dispute. All the evidence and the witnesses must be present and both parties will be allowed to call and cross-examine the witnesses. The settlement can be in the form of an arbitration award imposed by the commissioner based on evidence presented by both parties. This award is legally binding.
This is a combination of the abovementioned processes and is held on the same day. The process will commence with the “con” – conciliation. If the dispute is not resolved or settled, proceedings will immediately continue with the “arb” – arbitration. A party to a con/arb can object against the arbitration proceedings in writing to the CCMA and the other party at least seven days prior to the date of the “con/arb” hearing.
The commissioner is an independent third party to act as a facilitator assisting the parties to reach an agreement. Furthermore, the commissioner determines whether the dismissal or labour practices was indeed fair or unfair and then makes a binding award if applicable. This award can be either reinstatement or compensation, which is limited to a payment of a maximum of 12 months of the employee’s salary for unfair dismissals or labour practices, but 24 months of the employee’s salary for automatically unfair dismissals (on account of discrimination). The onus of proof is on the employer to prove that the dismissal or labour practices were fair.
Having clear rules in the workplace and following correct procedure is a proactive way to minimise the employer’s risk when it comes to CCMA matters. A Commissioner at the CCMA will always ask:
- Was there a rule in the workplace?
- Is there proof that the employee was aware of this rule?
- Did the employee act according to the rule?
- Were there progressive warnings (according to the offence)?
- Was a disciplinary hearing held (if applicable)?
Hundreds of new cases are referred to the CCMA every working day. Most cases pertain to unfair dismissal. This shows us that employees are more informed about their rights and the procedures to follow when they feel they have been wronged by the employer. In general arbitration awards in favour of the employee are due to the lack of following correct procedure on the employer’s behalf. The CCMA’s target to settle 70% of all cases referred, should not influence employers to settle the dispute when the employer feels that he/she has followed the correct procedure regarding the matter.
We strongly advise employers to implement clear rules in the workplace and follow correct procedures with regards to all labour matters, especially dismissal, retrenchment and general discipline in the workplace, by acting proactively.
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