Challenging a dismissal

Employees who don’t have benefit of trade union advice should turn to the CCMA

I REGULARLY get calls from individual employees who don’t have the benefit of trade union advice on how they should go about declaring a dispute or challenging an unfair dismissal.

The first investigation would be to ascertain if it is a dismissal, as to whether the dismissal was done for good reason and whether it was procedurally correct.

It is vital for employers to understand that even if there is good reason to dismiss this must be done in terms of a fair and open process. All employees have a right to challenge both the merits and the procedure by going to a bargaining council or the Commission for Conciliation, Mediation and Arbitration (CCMA).

If an employee wants to ascertain if the merits or procedure were incorrect this can be done by going to the help desk at any CCMA in the country.

Unlike most government departments, the CCMA has managed to effectively put together help desks which are manned by knowledgeable and courteous commissioners. The advice given is invariably both accurate and practical.

The officials will have access to all the specific forms which have to be completed. The help desk will also assist an individual in completing the forms and will give advice as to how they have to be served. These forms can be obtained by going on to www. ccma.org.za/Advice/CCMA-Referral-Forms.

These forms are easy to download and are user-friendly. The first form to be completed is the LRA Form 7.11.

It is practically set out allowing the employee to read the left-hand column first, enabling the person to understand what is required of them before going ahead and completing the form.

This LRA 7.11 application form outlines who must fill in the form and who it should be referred to. It also explains where the form goes and what other institutions might have the authority to receive the form.

The explanation goes on to outline that once the form has been properly completed and submitted, the CCMA will appoint a commissioner who must attempt to resolve the dispute within 30 days.

The employee is given further instructions as to where the form should be sent and how it should be sent. It also explains what type of dispute and the nature of the dispute.

Each section must be completed and if there is any confusion or a problem of interpretation this can be sorted out by the help desk or by telephoning the CCMA call centre on 086 116 1616.

This number can be called at any stage of the dispute and you’ll be able to track where your dispute is in the system.

The CCMA will provide a case number which can be used to assist them with the tracking. Also, your ID number provided in the application form will be placed on the system.

As part of your initial referral, you will outline the type of allegations that have been made against you and will also summarise the facts of the dispute. In summarising the facts, you need to be concise. It must be remembered that the referral document is not a summons and you are entitled at a later stage to expand on what you have placed in the form.

There is a section in the initial referral form outlining where you might want to object to both the conciliation and the arbitration being heard on the same day by the same commissioner.

If you want to object then you need to indicate so on the form by signing that particular section.

The norm is for the applicant to object but you must note that the employer can also object to the conciliation and arbitration being heard together.

The conciliation process is mere mediation and a commissioner would involve him or herself in the bare facts of the dismissal and then effectively attempt to explore the parties settling the dispute.

The CCMA sets itself a target of settling 75% of these disputes and they have been successful for the last decade.

A settlement avoids the necessity to go to arbitration and a situation where one party will win while another one loses.

There has to be a lot of give and take in this mediation process and the commissioners are specifically trained to structure the expectations of both of the parties. If the parties do settle at the mediation (conciliation phase) then this settlement will be put in writing and signed by both parties.

The commissioner will specifically outline each and every part of that settlement agreement so as to ensure that the signing parties fully understand and agree with everything that is contained therein.

A practice has arisen that the commissioner would bring in another commissioner to act as an oversight official so as to ensure that both parties sign the document willingly and with full knowledge of the contents.

If the parties cannot settle their dispute at the conciliation phase, then the employee would then complete a further form known as the LRA Form 7.13 application.

Once again, this form outlines the parties and would have to be served on both the employer and the CCMA. The form must go to the Registrar of the Provincial Office of the CCMA.

The details of the provincial offices are contained at the back of the form. In that referral form to the arbitration, the parties can indicate that they do not want the commissioner who conducted the conciliation proceedings and they can also request a senior commissioner to come in and arbitrate the dispute. If a senior commissioner is requested, then a further form known as the LRA Form 7.15 must be completed.

In order to take the sting out of the administration of the referrals it would be worthwhile to visit the CCMA offices in order to discuss your dispute with a qualified commissioner.