Cape Argus

Dispute rules, regulation­s

When an employee has an issue with an employer, certain procedures need to be followed

- WITH MICHAEL BAGRAIM WRITE TO BAGRAIM AT MICHAEL@BAGRAIMS.CO.ZA

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.

 ??  ?? TAKE advice before a dispute is referred. This can be obtained from the CCMA hotline or from most attorneys or labour consultant­s who will freely give advice. |
TAKE advice before a dispute is referred. This can be obtained from the CCMA hotline or from most attorneys or labour consultant­s who will freely give advice. |
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