Referring disputes to the CCMA: Dispute resolution mechanisms & processes

There remains some confusion by some employees when referring disputes to the CCMA. Where, for example, an employee disputes the fairness of a dismissal, and where the employee is desirous of referring the matter to the CCMA for conciliation, the employee must complete certain forms pursuant to the CCMA Rules.

The first, and perhaps most important form to be completed by the employee is the actual referral form, known as the LRA 7.11. form. An absolute requirement is that the employee must ensure that his/her employer receives a copy of the completed 7.11 form at the time of him/her referring the dispute to the CCMA.

Employers in turn are urged not to assume that the 7.11 form has been accurately completed by the employee. In certain instances, all too frequent in my experience, errors have been made by the employee in the filling out of the form, rendering the referral to be defective. The incorrect and/or inaccurate completion of the 7.11 form often results in the CCMA declaring that it may not have the requisite jurisdiction and/or authority to proceed with the matter because it has been improperly, or defectively, referred.

The employee has a period of 30 days from the date of dismissal/dispute in which to register his/her referral with the CCMA. Employers are urged to check whether the referral has been registered within the time limit. If not, the employer should check whether the employee has submitted an application for Condonation of Late Referral together with his/her late referral.

Employers are advised to read the contents of section 3 of the LRA 7.11 form carefully to ensure that the actual nature of the dispute has been correctly stated. The employer should also check what procedure the particular dispute should follow.

Disputes regarding dismissals for misconduct, incapacity or operational requirements are conciliated and arbitrated by the CCMA. The same applies to disputes where the employee states that he/she does not know the reason for the dismissal, and in instances where disputes relating to unfair labour practices, the right of expectation, or constructive dismissal are alleged.

Unfair labour practice disputes should be referred, typically, within 90 days of the dispute arising, or within 90 days of the date on which the employee first became aware of the act, or omission. Again, employers should check the contents of the LRA 7.11 form (Sect.8) to ascertain what outcome the employee is seeking.

The CCMA will advise the parties to a particular dispute as to the process to be followed once a dispute has been referred. More often than not, the Commissioner/Case Manager will propose a con/arb process. Simply put, what this means is that if the parties to a dispute are either not willing, or unable, to resolve the matter at conciliation, the matter will proceed immediately to arbitration.

If, on the Notice of Set Down, it states that the process will indeed follow a con/arb process, and in the event of the employer not wishing to proceed with this process, the employer may object, providing the objection is put in writing to the relevant Case Manager at the CCMA timeously. No reasons for the objection are required. A copy of the objection should be sent to the party referring the dispute to the CCMA.

The con/arb process is, however, mandatory in the event of the dismissal/dispute having occurred whilst the employee launching the referral was serving a probationary period.

Disputes in respect of operational requirements dismissals are not arbitrated by the CCMA, rather these are conciliated and proceed directly to the Labour Court should no settlement be reached at conciliation. In instances where only one employee is retrenched, the employee can elect to have his/her dispute arbitrated by the CCMA, or have the matter referred directly to the Labour Court.

Do you need assistance with dispute resolution?

Please feel free to contact us should you require any Labour Relations and/or HR advice, guidance, or assistance. Also, visit our website www.dynamixhrsolutions.com to see our full suite of services.