CCMA runs a precise, smooth operation

THE Labour Relations Act enabled the Commission for Conciliation, Mediation and Arbitration (CCMA) to be set up by the Department of Employment and Labour to conciliate and adjudicate disputes.

This function of the CCMA has been handled incredibly well over the past two decades.

Thousands of cases are referred to the CCMA daily, and the administration and officers run an efficient structure to enable these cases to proceed effectively.

For example, arbitration awards are handed to the parties within 14 days of conclusion of the arbitrations. From April 1 to June 30, the CCMA had 52 000 cases, and it took, on average, 24 days to deal with each conciliation case. It had a settlement rate for that period of 79%, and of those employees facing retrenchment, more than 45% of the jobs were saved.

This efficient process can only be done if the commissioners follow their rules with exacting principles in mind.

They may only receive cases once they have the ability to conciliate the dispute as per the legislation. Their rules state that they need to determine this jurisdictional issue beforehand.

The commissioner who conciliates a dispute will not make any findings at the conciliation stage on the merits of the case because that would be done at arbitration.

The commissioner will look into whether an actual employment relationship does exist, and will use Section 200A of the Labour Relations Act to make this determination.

Furthermore, a claim for unfair dismissal cannot be determined until the actual employee is dismissed, or an employee has been paid out in full.

The CCMA will have the power to look into all terms and conditions of different types of employment relationships. For example, if employees are outsourced or are subcontracting or are task-based workers, this will be subject to the jurisdiction of the CCMA. Even employees who work at home and charge for individual work, would have a claim at the CCMA.

A difficult area of the law is the allegation of an unfair labour practice, which means any unfair act or omission that arises between an employer and employee involving the unfair conduct by the employer, or the unfair suspension of the employee.

If the employee made a protected disclosure in terms of the Protected Disclosure Act, that employee would have to be protected and action taken against that employee for the disclosure could be referred for adjudication.

An employee who accepts an employer’s settlement offer and signs same, would effectively abandon his or her claim against that employer. In terms of the settlement agreement, an employer is obliged to either receive a tax directive or take the necessary income tax off the settlement amount.

Should the commissioner discover that the dispute should be at the relevant bargaining council, the commissioner may refer that dispute to the council for resolution, or may appoint a commissioner or confirm the appointment of a commissioner to resolve the dispute in terms of the Labour Relations Act at the CCMA.

When the CCMA decides to refer a dispute on to that bargaining council, the date the employee sent the dispute to the CCMA would be deemed to be the date of the commencement of the dispute resolution.

There are many agreements where there is private dispute resolution in terms of an employment contract, or a letter of appointment, and if this is pointed out to the commissioners at the CCMA, the commissioner may refer that dispute to the appropriate person for the private dispute resolution procedures, or they may appoint a commissioner to resolve the dispute in terms of the Labour Relations Act.

This would be done if the employee is earning below the threshold as prescribed by the Minister of Employment and Labour, and if the agreement states the employee would have to pay some of the costs.

Furthermore, if the private dispute resolution body is not independent of the employer, the CCMA or the Bargaining Council will take over the adjudication of that dispute.

All disputes between employment parties about matters of mutual interest will be referred to the CCMA.