Referring a dispute to the CCMA – The basics
Referring a dispute to the Commission for Conciliation, Mediation and Arbitration [CCMA] can seem difficult when you have never been to the CCMA. This article will summarise the basics that you need to know to be able to refer your matter. When considering the CCMA, there are a couple of factors that you have to take into consideration. It is important to note that you do not need the consent of the employer to refer your matter to the CCMA.
There are different disputes that the CCMA has jurisdiction over to entertain. This includes:
(b) wages and working conditions
(c) workplace changes, or
If you find yourself the subject of one of the above the CCMA will be able to assist.
When you have been dismissed, you have to refer you dispute to the CCMA within 30 (thirty) days from the date of your dismissal.
If you are subjected to an unfair labour practice, you have to refer your dispute to the CCMA within 90 (ninety) days from the date that the unfair labour practice occurred.
If you have been discriminated against you have 6 (six) months to refer your dispute to the CCMA.
It is important to remember that at the CCMA weekends are included and you should not count only the working days.
THE FORM LRA 7.11:
This is the form that you must fill in when you want to refer a dispute to the CCMA. This form is available at the CCMA offices or you can download it from the website of the CCMA [http://www.labour.gov.za/DOL/documents/forms/labour-relations/form-lra-7-11-referring-a-dispute-to-the-ccma-for-conciliation].
SERVICE OF THE LRA 7.11:
Once you have completed the form a copy thereof must be ‘served’ on the employer. This can be done by either sending the form via:
(a) registered post; or
(b) facsimile; or
(c) email; or
(d) deliver it in person
You must be able to prove that you have served a copy of the form on the employer and this can be done in the following ways:
(a) registered slip;
(b) fax transmission slip;
(c) proof of email / delivery report
(d) signature of person receiving the form.
When the form has been served on the employer, you must attach the proof of service to the form and submit it to the CCMA.
You can send the form and proof of service to the provincial office of the CCMA in the province where the dispute arose.
You can send the above via:
(c) hand delivery; or
(d) registered post.
You can follow this link to downloadthe contact details of each provincial office.
DATE PROVIDED BY THE CCMA:
The CCMA will then provide you with a date to conciliate your matter within 30 (thirty) days from the date which you submitted your form.
If you are not provided with a date within the prescribed period, the CCMA will set your matter down for Arbitration or send you a form to complete to refer the matter to Arbitration.
This is the first process that will take place at the CCMA. This is the stage where both parties endeavour to reach an agreement which has a positive outcome for both parties.
It is important to note that during conciliation the following people are allowed:
(a) the parties
(b) trade union representative; or
(c) employer’s organisation representative.
Legal Representation is not allowed during the conciliation process, but attorneys are not excluded from assisting the client outside of the conciliation room.
If an agreement cannot be reached the Commissioner will issue a ‘certificate’, this certificate will state that the matter must either be referred to Arbitration or the Labour Court depending on the nature of the dispute.
In order to refer a matter for Arbitration the form LRA 7.13 needs to be completed. The same process to refer a matter to conciliation is applicable at this stage in the process. It is important to note that the certificate issued by the commissioner must be attached to the form 7.13.
The arbitration process is more formal and is the process where the commissioner decides on the outcome of the dispute.
Each party to the proceedings, must bring evidence or documents to support their claims and may also bring witnesses to support their evidence.
This stage of the process requires examination in chief, cross-examination and re-examination of witnesses.
In this instance Legal Representation is allowed.
If a party to the dispute does not attend the arbitration the commissioner may choose to postpone the matter to grant the party an opportunity to attend, or proceed in default.
Proceeding in default, means the commissioner will only hear the side of the Applicant and proceed to make a default award.
If both parties attend, the matter will continue and the commissioner will make an arbitration award.
This award will be made available to the parties 14 (fourteen) days after the arbitration proceedings ended.
THE CON/ARB PROCESS:
This is a combination of the conciliation and arbitration processes. This will mean that if the parties cannot reach an agreement during the conciliation stage, the arbitration proceedings will commence directly after the conciliation.
If you have been informed that you must attend a con/arb process, but you wish to only conciliate the matter, you may object to the con/arb process, by informing the employer and the CCMA in writing.