LWO Employers organisation

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WHAT IS THE CCMA?

South Africa’s labour environment is highly regulated, which makes it very important (and challenging) for employers to comply with labour legislation on an ongoing basis. This is where representation for the employer is of immense value. Non-compliance poses a serious business risk to any employer with a possible huge financial impact that could have been prevented.

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). It aims to promote fair labour practices and resolve labour disputes in the workplace. An employee can refer a dispute to the CCMA on the basis of dismissal, wages and working conditions, unfair labour practice, workplace changes and discrimination.

Most cases referred to the CCMA relate to unfair dismissal. Generally, arbitration awards in favour of the employee are due to incorrect procedures on the employer’s behalf.

WHEN CAN AN EMPLOYEE APPROACH THE CCMA?

  • “Unfair dismissal”: must be referred to the CCMA within 30 days after the date of dismissal.
  • “Unfair labour practice”: must be referred to the CCMA within 90 days after the unfair incident, or within 90 days after the employee becomes aware of the unfair labour practice.
  • “Discrimination”: must be referred to the CCMA within six months of the act or omission that constituted the discrimination complained of.

REPRESENTATION: WHO CAN REPRESENT THE EMPLOYER AT THE CCMA?

CCMA processes can be intimidating and it is a good idea to get expert advice. An employer can be represented by any employee/director of the business, or by any member, an office bearer/official of a registered employers’ organisation.

The only time when a legal practitioner, such as e.g. an attorney, will be allowed during the proceedings, is as follows:

  • In all in limine hearings, irrespective of the nature of the underlying dispute;


  • In all arbitration hearings other than:
    • dismissals based on conduct;
    • dismissals based on capacity (performance or ill health);
    • referrals in terms of section 69(5) [where an employer refers a dispute concerning a compliance order that was issued against that employer in terms of section 69 of the BCEA, to the CCMA];
    • section 73 of the BCEA [to have an compliance order made an award]; and
    • section 73A of the BCEA [claims for failure to pay any amount owing in terms of the National Minimum Wage Act 2018, a contract of employment, a collective agreement, or sectoral determination].
  • Where representation by a legal practitioner and candidate attorney is NOT automatically permitted at arbitration, the presiding commissioner may allow such representation if:
    • the commissioner and all the other parties consent;
    • the commissioner concludes that it is unreasonable to expect a party to deal with the dispute without legal representation, after considering –
      • the nature of the questions of law raised by the dispute;
      • the complexity of the dispute;
      • the public interest; and
      • the comparative ability of the opposing parties or their representatives to deal with the dispute.

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3 MAIN CCMA PROCESSES AND WHAT EMPLOYERS SHOULD KNOW

    1. Conciliation – This is an informal process where a commissioner is appointed to meet with the parties to a dispute within 30 days after the referral and explore ways to resolve the dispute by mutual agreement. Separate meetings between the commissioner and each party may also be held. If the case is settled, a settlement agreement is signed and the dispute is resolved.

2. Arbitration – This is a hearing process where the parties have the opportunity to state their case. During the process, oral evidence is presented as well as any other forms of evidence in support of a party’s case. Thereafter the commissioner will issue an arbitration awards within 14 days. An arbitration award is binding and the equivalent of a court ruling.

3. Conciliation/Arbitration (“Con/Arb”) – This is an ongoing process where conciliation and arbitration follow directly after each other on the same day. If conciliation (settlement) is not reached, arbitration will take place on the same day. Both the employer and employee can object to the ongoing process on the same day. However, the ongoing process is mandatory in matters concerning:

    • dismissal for any reason relating to a probation period;
    • any unfair labour practice relating to a probation period;
    • the failure of any payment in respect of the national minimum wage.

THE CCMA: PENALTIES, AWARDS AND THE CALCULATION OF COMPENSATION

Once the applicant has referred a dispute to the CCMA, it will be set down for conciliation and a commissioner will be appointed to adjudicate the dispute. If conciliation fails, the matter will be set down for arbitration. Once the arbitration hearing has been concluded, the commissioner will issue an award within 14 days.

Penalties and awards that an employer can face may include the following:

Reinstatement:

The employer must take the employee back with retrospective effect to the date of dismissal. In such circumstances, the employer would have to give the employee back pay from the date of dismissal up until the reinstatement award was made.

Re-employment:

The employer is required to take the employee back with effect from the date of the award.

Compensation:

The CCMA can award up to 12 months’ compensation to a successful employee (and 24 months in the case of an automatically unfair dismissal). One month’s compensation will be equal to that specific employee’s monthly remuneration. If the compensation amount awarded to the employee has not been paid on or before the prescribed date, the employee can exercise his/her right to enforce the award. This means that the employee will proceed to certify the award in terms of section 143 of the LRA and it may be enforced as if it were an order of the Labour Court in respect of which a writ has been issued. The employee can now instruct a sheriff to attach the moveable goods of the employer.

What does the commissioner consider when calculating compensation?

Compensation is not about the actual loss suffered, but rather about the nature and seriousness of the injustice. The commissioner can exercise discretion and will always consider the following:

  • What is just and equitable in the circumstances.
  • Was the dismissal substantively fair.
  • Was the dismissal procedurally fair.
  • What are the merits of each case together with its own unique circumstances, the relationship of the parties and their attitude after the dismissal.

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BEWARE!

If an employer fails to attend the arbitration proceedings without a valid reason, the proceedings will continue in their absence and a default award could be issued against their name.

An employer should never ignore any documentation, emails or messages received directly from the CCMA, or a CCMA referral form received from a dismissed employee. Within a few weeks of receiving such a referral form, the CCMA will provide the employer with a set down date. If the employer does not receive a set down date, it is advisable to contact the CCMA in order to follow up on the set down date. The matter will be set down for Con/Arb. This means that the arbitration will commence immediately after the conciliation. In most cases, the employer may object to Con/Arb, which means that the CCMA will split the proceedings to be heard on separate occasions.

Representation is important. Make sure you have the LWO in your corner to make sure your rights as employer are protected.