The CCMA has processed well over 1 million disputes! Are you prepared to face it?
Every employee has the right to refer a dispute to the CCMA if he feels you’ve treated him unfairly. Sometimes an employee may refer a dispute even when you know you’ve treated him fairly. You can’t stop him from referring a dispute, and you just need to make sure you’re prepared!
The following information is taken from the Labour Law for Managers Loose Leaf, which is part of the Labour Law for Managers Loose Leaf Service. As part of the invaluable labour advice service, you’ll also receive three bonus reports, regular updates, a daily Bulletin, online access to past labour updates and a labour helpdesk.
Your employee must refer a dispute to the CCMA within 30 days of the date of his dismissal by completing an LRA Form 7.11. When you receive the referral, there are a number of things you must double check. You need to know what steps to take immediately and what’s likely to happen as the dispute proceeds.
Our checklist from the Labour Law for Managers Loose Leaf shows what you should look for on the LRA form
- Is the applicant (the person referring a dispute against you) your employee?
- Are you the employer? Have you been described correctly?
- What type of dispute has been referred?
- Is this the kind of dispute that the CCMA has authority (jurisdiction) to handle?
- What's the date on the form and when did the dispute arise? When was the form served and filed?
- Using the above information, check whether the dispute was referred on time.
- If late, has the employee asked for condonation (forgiveness for being late)?
- What relief does the employee seek?
- Has the employee objected to con-arb? If not, should you?
We’ll answer your questions about CCMA conciliation!
If your employee's referred a dispute to the CCMA, the next step will be for it to set the matter down for conciliation. Have a look at some common scenarios you could encounter, and the best ways to handle these situations.
Take note – this could happen to you! These scenarios (and more) appear in the Labour Law for Managers Loose Leaf …
I am the HR Manager for my company, based at the head office in Johannesburg. I've received notification that conciliation has been scheduled for a dispute referred by an employee who was previously employed at our Cape Town branch. I don’t see why I should be inconvenienced to travel to Cape Town – can I insist that the conciliation is held in Johannesburg?
The dispute will be conciliated in the province in which the cause of action arose. You need to look at the circumstances of the dispute to see where the cause of action arose. More than likely, if the employee was employed in Cape Town and carried out his duties in Cape Town, the cause of action would have arisen in Cape Town. You then have to attend the conciliation in the Western Cape and won’t have any grounds to object to this.
The CCMA hasn’t scheduled conciliation yet and there’s no certificate of outcome in the dispute between my business and an employee. I have received a request for arbitration from the employee. Can I object to this on the basis that the dispute hasn’t been conciliated?
No, unless 30 days haven’t passed since the dispute was referred. If 30 days have passed, the referring party is entitled to then request arbitration or refer the matter to the Labour Court for adjudication, depending on the circumstances.
The LRA says in these circumstances, even where there's no certificate, the referring party can proceed. This is to ensure the matter progresses, even if there are delays in setting the matter down for conciliation which may happen, for example, where the CCMA's overloaded and cannot deal with all the cases in time.
This doesn’t happen very often – but it can, so you must be aware of it.
During conciliation, the commissioner told me I have no possibility of defending my matter and I have to pay the employee 12 months’ compensation. Can he do this?
No. A commissioner doesn’t have the power to order the parties to do anything regarding the actual merits of the dispute. He can only give guidance and try reach a settlement between the parties. Don’t be forced into settling a matter you don’t want to settle.
After talking with the parties for a few minutes during conciliation, the commissioner asked me to leave the room so he can talk to the employee alone. When I returned and asked the commissioner what he spoke to the employee about, he wouldn’t tell me. This doesn’t seem right – should I be objecting?
This depends on the circumstances. A commissioner may speak with the parties separately if he believes it may help reach a settlement. He then has no obligation to tell you what he spoke about with the employee. However, remember this for future purposes. If he spoke with the employee alone, hasn’t heard your side of the story and is scheduled to be the arbitrator of the matter, you should object.
At the conciliation, the referring party didn’t arrive. I asked the commissioner to dismiss the matter and issue a written ruling. He said he’ll dismiss the matter, but he didn’t want to issue a written ruling. What can I do?
Refer the commissioner to the CCMA Rules and, in particular, Rule 30(3). It provides that if a matter is dismissed, the CCMA must send a copy of the ruling to the parties. So a written ruling must be issued. It’s often useful, especially in situations like this, to have a copy of the CCMA Rules handy when you attend any proceedings at the CCMA, so you can refer to them if necessary.
What you’ll discover in the Labour Law for Manager’s Handbook:
- Employment Contracts: 22 Must-have clauses your employment contracts simply CAN’T be without!
- Retrenchment: How it’s done fairly and effectively
- Discipline and Dismissal: Triple performance and fairly give poor performers the boot!
- Leave: How much is due, when and how?
- Employment equity and how to ensure compatibility
- Absenteeism: Be proactive – deal with absenteeism today!
- Grievances: Make sure you resolve employee grievances before they turn into major CCMA or Labour Court disputes!
- Overtime: How to make the law work for you when it comes to overtime
- Poor Performance: 10 Essential steps to dismissing for poor performance - have you covered all your bases?
- Strikes: Dealing with them and knowing when they’re illegal