As you are aware, President Cyril Ramaphosa addressed the Nation on the 23rd of March 2020, where it was stated that a National Lockdown would be implemented from 27 March 2020 to 16 April 2020. This has caused immense financial stress on both employers and employees.
At this stage, a lot of employers find themselves at an impasse not being able to generate a monthly income, but still being liable for monthly remuneration of employees. The lockdown in essence is affecting the economy of South Africa tremendously. For this reason, employers are faced with no other option but either to have the employees take unpaid leave, if the employees are able to afford it. The alternative, which is the most nuclear option, is to start the Retrenchment process.
If an employee is retrenched, the burning question any employer or employee may have is whether the matter can be referred to the CCMA during the lockdown period.
The simple answer is, yes. This is because, in terms of the CCMA rules, a party can serve and file a document either by way of electronic mail, telefax and/or personal service.
SERVICE AND FILING:
In terms of the CCMA rules, a party referring a dispute to the CCMA will have to complete the LRA Form 7.11. This means that the party completing the document will have to provide the CCMA with the relevant details of the dispute they wish to refer. Once this document is completed, the employee must then serve the LRA Form 7.11 on the employer. This can be done by way of electronic mail and/or telefax during the lockdown period.
Once the employee has served the LRA Form 7.11 on the employer, the employee can then file it at the CCMA by way of electronic mail and/or telefax. This means that the party referring the dispute to the CCMA will then have complied with the rules. The time periods as stipulated when referring a dispute to the CCMA in terms of the Labour Relations Act has remain unchanged.
That means to refer a retrenchment or an unfair dismissal, a party will only have 30 days from date of the dismissal arising, to refer the matter to the CCMA. This is very important for a party to ensure that during this lockdown period they do not exceed these time periods imposed. Should the time limit be exceeded, they would then have to do the necessary Condonation Application to ask the CCMA to condone the late filing of their LRA Form 7.11.
WHAT HAPPENS NEXT?
Once the document has been served on the employer and filed at the CCMA, the CCMA will process the relevant dispute and provide the party with a Set Down Date. The Set Down Date will obviously not be during the time period of the Lockdown and shall only be scheduled for after the Lockdown period has ended. If it so happens that a party receives a date and the Lockdown period is extended, this date will then be rescheduled by the CCMA.
Thankfully, the CCMA is not standing still at this time and a party that wishes to refer any type of dispute to the CCMA will be entitled to do so by way of electronic mail or telefax during this Lockdown period. This is very important as due to technology, parties are able to refer disputes sufficiently to the CCMA and/or other relevant bargaining counsels, in order to ensure that justice is served.