While employees know about the CCMA (Commission for Conciliation, Mediation and Arbitration) and what is does, many employees are unaware of the procedure to follow in order to successfully refer their disputes.

The CCMA was set up to resolve labour disputes in a cost effective and expedient manner. It is for this reason that employees should act quickly if they intend to refer a dispute to the CCMA as the rules prescribe specific time periods in which to do so. It is also imperative that party’s wishing to refer a dispute should consult a legal practitioner to determine whether they have a claim worthy of referring, which forum they should refer to the dispute to and whether any condonation application needs to be submitted. The following requirements must be met before a dispute can be referred to the CCMA:

Jurisdiction

• The party referring the dispute must be an employee (as defined in the LRA) and not an independent contractor. It is also possible for an employer to refer a dispute to the CCMA;
• If a bargaining council or statutory council exists for a particular industry then the dispute cannot be referred to the CCMA and must instead be referred to that industry’s particular council and in terms of that councils rules;
• The dispute must arise out of the employment or intended employment relationship (ie. the dispute must fall under the ambit of the Labour Relations Act, Employment Equity Act, Basic Conditions of Employment Act or Protected Disclosures Act).

Tip: Independent contractors wanting to refer a dispute to the CCMA should consult an attorney as the courts have developed tests to determine whether independent contractors are in fact true employees contractually labelled as independent contractors. As a result of the aforementioned, independent contractors may in fact be employees and accordingly entitled to refer their disputes to the CCMA.

Time Periods

Parties wishing to refer disputes arising from unfair dismissals must do so within 30 days and claims for unfair labour practices must be referred within 60 days from the date that the dispute arose. Employee’s who feel that they have been discriminated against and that the discrimination relates to their employment, are required to refer their dispute to the CCMA within a period of (6) six months. Failure to refer a dispute within the prescribed periods will result in the applicant having to bring an application for condonation wherein they will need to request the CCMA to condone their late referral.

Process

The referral form used to refer a dispute to the CCMA is known as a 7.11 form which can be found online or obtained from your nearest CCMA office. Once the form is properly completed and the dispute has been correctly identified, the form needs to be delivered to the other party by way of one of the following: registered post, fax, or by hand. A second copy of the 7.11 form must then be delivered to the CCMA together with proof that the 7.11 form was delivered to the other party. Satisfactory proof would be to attach a copy of the fax receipt, registered slip or signature of the other party accepting delivery. Once the CCMA receives the 7.11 form together with proof of service, they will allocate a date for the hearing of the matter and notify the parties thereof.

Tip: It is advisable that the party referring the dispute keeps the original 7.11 form, as well as the original documents which prove service on the other party and the CCMA. The originals can be handed up to the commissioner at the hearing if necessary.

The Hearing

The CCMA will appoint a commissioner to hear each case who will often start the proceedings by enquiring whether there are any prospects of settling the dispute. Commissioners will often promote the settlement of matters (if possible) and should the matter be settled a note detailing the terms thereof will be made on the file and agreed to by all the parties. If the parties cannot settle or do not wish to settle, then the commissioner can make a recommendation but this recommendation is not binding on the parties and accordingly parties should not be pressured to accept same unless they are fully satisfied with the terms thereof.

If the parties are unable to settle and do not wish to follow the recommendation made by the commissioner (if any), then the commissioner will issue a certificate of non resolution stating that the dispute remains unresolved. It will then be necessary for the party who referred the dispute to refer the matter to arbitration or the Labour Court depending on the nature of the claim. In certain circumstances the dispute will be dealt with through the “con-arb” process which will result in Arbitration commencing immediately after Conciliation, unless the party defending the referral objects thereto timeously and prior to the dispute being heard.

Arbitration / Labour Court

This Arbitration / Labour Court process is more formal than conciliation and any award / ruling made will be final and binding on the parties, and only subject to review or appeal respectively.

Tip: Referral of a dispute to Arbitration or to the Labour Court is required to be made within certain time periods prescribed by the Act. It is accordingly imperative that parties do not hesitate in seeking legal representation to ensure that their dispute is referred to the correct forum and within the stipulated time. Much preparation is needed when the dispute progresses to this stage and therefore parties with little experience should be cautioned from representing themselves due to the procedures and legalities involved therein.

Written by Nic Preston (nic@bkm.co.za) at BOUWER KOBELI MORABE, 34 Bath Avenue, Rosebank, (011) 788-0083