Dispute rules, regulations
When an employee has an issue with an employer, certain procedures need to be followed
WHENEVER an employee or a trade union declares a dispute with the employer, this dispute has to be referred to either the Commission for Conciliation, Mediation and Arbitration (CCMA) or a bargaining council.
All employees can check their pay slip if their employer belongs to a bargaining council. If unsure, then the default is the CCMA. Remember that the dispute must be referred timeously, normally within 30 days.
There are complex rules and regulations governing the dispute procedure and the conduct of the parties when a dispute is to be heard.
There are too many rules for us to give a comprehensive outline, but it is important to at least take advice before the dispute is referred. This advice can be obtained from the CCMA hotline 086 116 1616. The rules govern how the documents should be completed, what information they should contain and how the documents would be served on the employer and thereafter, with proof of service to the CCMA.
When completing the documentation anyone can go to the CCMA offices for advice free of charge.
The commissioners are willing and able to not only complete the forms, but also to give advice after having heard what the nature of the complaint is. They will explain that service can be done personally or through electronic or registered post means.
Furthermore, it will also be outlined to the employee how they will be informed of the time, date and place of the conciliation and thereafter the arbitration.
Furthermore, the commissioners do try before conciliation (mediation) is held to contact the parties telephonically to see if they can settle the dispute without the necessity of going to the CCMA.
Dates and times and the venue are sent to the parties via SMS, electronically and sometimes by telefax.
Normally the dispute, if not settled telephonically beforehand, is set down for conciliation/arbitration. This means that firstly there will be an attempt to mediate the dispute and settle it, and if this is not successful then it will automatically go to arbitration and an arbitrator (commissioner) will make a final and binding decision.
This decision cannot be appealed, it can only be reviewed thereafter in the Labour Court. If any party objects to the conciliation/arbitration, in certain circumstances the CCMA must allow the objection to go ahead and there will only be a conciliation.
This objection must be timeously sent to the employer or the employee and proof of this service must be sent to the CCMA. If there is merely conciliation on a certain date then it is peremptory for the applicant party (the employee) to attend.
The employer party in fact does not have to attend, but this will merely allow the employee to refer the matter to arbitration. It is to be noted that no legal representation is allowed and even co-employees cannot represent the referring party.
Legal representation can come to the conciliation if the lawyers wish to raise a legal point at the conciliation before it is heard. The CCMA and the bargaining councils normally wait for 30 minutes to assess whether in fact the other party is going to arrive. If the other party doesn’t arrive, the matter is then automatically open for the applicant (employee) to refer to an arbitration. If there’s been no objection to the Con Arb, the arbitrator will automatically go onto arbitration, and even if the respondent (employer) is not present the arbitration will go ahead. If the employee cannot be present for good reason, the commissioner can make a decision taking into account all the relevant factors.
The commissioners (arbitrators) are often faced with claims that they don’t have jurisdiction over.
The commissioner may request a specific prescribed form to be placed before him or her and might ask for an extension. The commissioner will then make a decision as to whether the CCMA or the bargaining council can go ahead. These decisions can be taken on review to the Labour Court, which could take anything up to 18 months to give a decision.