South Africa’s business landscape is highly competitive and is governed by legislation designed to enforce compliance.
It is important for employers to know under what circumstances a critical resource such as the CCMA (Commission for Conciliation, Mediation and Arbitration) will get involved.
The CCMA can get involved in several matters including dismissal, wages and working conditions, workplace changes, or discrimination.
It is important to note that an employee may ask the CCMA to conciliate or even arbitrate your dispute. A union or employer’s organisation may also initiate this action. Either party does not need the other party’s consent before taking the matter to the CCMA.
In the following instances the CCMA does not hear disputes where:
• an independent contractor is involved;
• the case does not deal with an issue in the Labour Relations Act (LRA), Employment Equity Act (EEA) or Basic Conditions of Employment Act (BCEA);
• a bargaining council or statutory council exists for that sector; and
• a private agreement exists for resolving disputes (for example: private arbitration).
The body has three major functions: conciliation, arbitration, and con-arb.
Employees may refer disputes about unfair labour practices and unfair dismissals on an LRA 7.11 application form to the CCMA or, where applicable, a bargaining council for conciliation. If the dispute remains unresolved, it can be referred to arbitration. The dispute can also be con-arb if there is no objection.
The company adds that conciliation is a process where a commissioner meets with the parties in dispute, and explores ways to settle the dispute by agreement.
At conciliation a party may appear in person or be represented by a director or employee of that party or any member, office bearer or official of that party's registered trade union or registered employer's organisation.
The meeting is conducted in an informal way.
The commissioner may begin by meeting jointly with the parties and asking them to share information about the dispute. Separate meetings between the commissioner and each party may also be held. Parties are encouraged to share information and to come forward with ideas on how their differences can be settled. The commissioner may also put forward suggestions.
When conciliation fails, a party may request the CCMA to resolve the dispute by arbitration.
At an arbitration hearing, a commissioner gives both parties an opportunity to fully state their cases. The commissioner then makes a decision on the issue in dispute. The decision, called the arbitration award, is legally binding on both parties. Attempts must generally be made to resolve the dispute through conciliation. If it cannot be resolved by conciliation, the parties can go to arbitration or the Labour Court, the Act specifies which dispute goes to which process.
This process may not be used for dismissals relating to unprotected strikes. These disputes must be referred to the Labour Court after conciliation has failed at the CCMA.
During the Conciliation and the Con-Arb process the Commissioner has the power to award the employee a maximum amount not exceeding twenty-four months remuneration in cases of automatically unfair dismissal or a maximum amount not exceeding not exceeding twelve months remuneration in cases of unfair dismissal.
The market is advised to always evaluate the precise nature and circumstances of each case against the criteria as laid out by the CCMA, prior to immediate engagement.
This will eliminate a great deal of frustration on all sides and help to streamline what are often complex, tough and drawn-out processes.
Nicol Myburgh heads up the HR Business Unit at CRS Technologies.