What are the grounds and process to refer a dispute to the CCMA?
South African citizens enjoy the application of South African labour laws, which tends to be applied more liberal than not. These laws create the rights to which citizens as employers or employees are entitled to in the workplace.
Your rights as either of these parties are enshrined in some sort of agreement, legislation or directive issued by the relevant authority.
Workplace disputes arise more often than not, for various reasons. Some employers tend to be less compliant towards these laws than they should be, leaving the employee to be unfairly treated pertaining to that situation. The dispute can relate to the employee’s remuneration, statutory monies due or general treatment as such an employee, by the employer. The dispute can also arise out of a situation where the employer intends to part ways with the employee, for some reason or another.
These sources of labour rights and obligations have different forms, but essentially boil down to the same basic rules: Employers can’t part ways for reasons other than employee’s misconduct, negligence, -capacity, or operational requirements. These reasons form the basis for the procedure the employer is supposed to follow: Either by way of a hearing, several interventions or various consultations.
Should the employer not have a just reason or execute the procedure in a manner that is unfair towards the employee, the aggrieved can refer the matter to a designated body which shall attempt to resolve what is now known as a dispute. Generally, the CCMA is the first step to refer this matter to. Lack of compliance on the part of the employer entitles the aggrieved party to certain forms of compensation.
After completion and service of the referral to the CCMA and the employer, a date is set down for conciliation, followed by arbitration. Each party may object to the process known as con-arb, which effectively entails that an alternative date for arbitration needs to be obtained.
At conciliation, the presiding commissioner attempts to broker a settlement between the parties as to compensation. If this fails, the matter will be heard for arbitration.
At arbitration, the presiding commissioner is no longer acting as a broker of settlement, but rather as presiding officer between each party, whose duties are to prove their respective cases with regard to the dispute. After conclusion, the parties adjourn and the commissioner has 14 days to prepare and deliver an award. Therefore, at conciliation, the outcome of the matter is in the hands of the parties, while at arbitration, the outcome is determined by the arbitrator.
With regard to compensation, there is no hard and fast rule as to the amount of compensation the aggrieved party is entitled to, and as such, will only be obtained at settlement or within the discretion of the arbitrator. In the latter instance, an arbitrator considers aspects which were raised at arbitration from each party, as well as various factors. The end result might not necessarily be one the aggrieved party might have hoped for, but will be based on the reasoning contained in the award itself.
The application of South African Labour Laws, as well as establishing liability on the part of the employer, is not too difficult. When it comes to compensation, however, one must not expect the moon and be disappointed when you receive a star. This may differ from case to case, and as such, this article is not any indication of the prospects of success, but rather a piece written from anecdotal experience in various labour forums.
While not required, it is advisable to seek a person with experience and knowledge in the applicable labour laws for assistance with a matter.
RP Attorneys offers labour advice and assistance with disputes referred to the CCMA. For legal assistance relating to the above, email [email protected]