Most people with breast cancer are able to go to work and do other everyday things the same as usual while they get treatment. However, if you feel that your employer is treating you unfairly you can approach the CCMA.
The Commission for Conciliation Mediation and Arbitration (CCMA) was established in terms of the Labour Relations Act No. 66 of 1995. It is often shrouded in mystery. Employers fear it without reason and employees who try and navigate a case through it are often left bemused by their dealings with it. I intend to offer a brief explanation of the CCMA.
What is the CCMA?
The CCMA is a forum for the airing of disputes pertaining to unfair dealings in the workplace. Companies and individuals very often have the wrong impression about how the CCMA operates, what its mandate is and most importantly the function or role it plays.
I would recommend that when dealing with a matter at the CCMA that you consult a legal practitioner and specifically, one who deals with Labour Law. I have seen many seasoned attornies come unstuck at the CCMA because they had no understanding of how the CCMA functions.
If you cannot afford legal representation this should not discourage you from approaching the CCMA on your own. They have an advice centre at the CCMA and they will assist you with the lodging of the case. The Commissioners do their best to also ensure that the parties are aware of how the CCMA works and what to expect.
It must be stated that the CCMA offers their services for FREE. There are a number of people who hang around the entrance to the CCMA and offer assistance. They will tell you that they work for CCMA and then ask for money to lodge your case. Do not be fooled. Very often they take the money and your case is never lodged.
The CCMA also has a great website. www.ccma.org.za. It outlines everything you will need to know. The website has the branches, contact details and the prescribed forms which you can download.
How does the CCMA work?
The CCMA is what we call a creature of statue. This means that the CCMA can only deal with matters prescribed by the Labour Relations Act, such as unfair labour practices and certain types of unfair dismissals. This can be tricky and if you are not sure I would recommend that you call the CCMA and ask if they can handle your case.
The CCMA has a set of rules which outline how matters are dealt with. The Commissioners zealously abide by these rules, because if they don’t the matter could end up on review in the Labour Court.
The CCMA employs a two-step process
The first step is conciliation, all matters have to proceed through this step before moving on. A Commissioner is appointed whose sole function it is to try and get the parties to settle the matter. They do this in a variety of ways. Very often they separate the parties and speak to them individually. They may request an outline of your case and ‘test’ it. There is no obligation on you as an employer or employee to prove your case at this stage. The idea is to get parties who have weaknesses in their cases to look at them and assess the viability of going ahead with the case. The Commissioners may be blunt and may express opinions on the matter and again the idea is to steer the parties away from fighting and toward a settlement.
The conciliation is a process that is ‘off the record’ and ‘without prejudice,’ any admissions or statement made there cannot be used later on. The Commissioner has to issue a certificate of outcome if the parties do not settle. He/she cannot force a party to withdraw their case or to settle. If you are not happy with what is on the table you have every right to ask for the certificate and proceed to the next stage. Legal representation is not allowed during the conciliation process.
The second step is arbitration.
This is an adversarial process and parties are expected to bring evidence and prove their cases. The type of dispute will determine who bears the burden of proof and who begins. The Commissioner will explain the process to you. Each Commissioner has the authority to deal with the arbitration in a manner that he/she deems fit. All arbitrations at the CCMA are recorded.
Legal representation is allowed, unless it is an unfair dismissal claim for misconduct or incapacity. In these instances your legal representative will have to apply to the Commissioner to be allowed and the CCMA rules set out guidelines on how this is done. There is currently a ruling from the North Gauteng High Court declaring the refusal to allow legal representation asunconstitutional but the CCMA has been busy for 36 months to reformulate their rules in this regard.
The CCMA strives to tone down the legal formalities and you will find that it is not at all like a court of law. The core values are equity and fairness.
If you are not going to make use of a legal representative I would most certainly recommend that you make use of the CCMA advice centre and/or their website. They provide a useful guideline on how to deal with the CCMA and what to expect.
What is a con/arb and is my former employer allowed to object?
A con/arb is where the CCMA has combined the conciliation and arbitration processes into one hearing date. They do this for sake of expediency. Either party may object to this. This simply means that the two-step process will be split. The Conciliation will still be heard as scheduled but the arbitration will take place at a later date.
How long does it take to finalise a CCMA case?
There is no concrete answer here as it varies per region or branch. Conciliation must be held within 30 days of the CCMA receiving the referral. If it is a con/arb then it could be over within 30 days, but if the process is split you could wait up to two months between conciliation and arbitration. I have dealt with cases that have taken between 8 to 12 months from start to finish.
What can I ask for as an outcome?
This depends on the dispute you place before the CCMA. The Labour Relations Act says that the Commissioner can award re-instatement (i.e. you go back to work) or compensation (money). There is a maximum of 12 months remuneration. In reality though I caution anybody expecting 12 months. It is seldom that the CCMA will award that and only in the most egregious of cases. It is at the discretion of the Commissioner and whatever he awards he has to justify. Most commonly, an unfair dismissal will receive 6 to 8 months salary as compensation. I have recently dealt with a case where the employee only received one month because there was only a minor procedural flaw in the dismissal.
If we go to arbitration, how long do I wait for an outcome?
The Commissioner must submit an award or ruling within 14 days of the hearing. Do not go to the CCMA expecting instant gratification.
As an employer may I ignore a notification to attend the CCMA?
I would strongly recommend that you don’t. The CCMA will hold a hearing in your absence and making an award or ruling against you. Even if the claim is without merit in your mind – do not ignore the process. It is not easy to have the ruling or default award overturned. If you cannot make the hearing rather apply for a postponement than ignore it.
Written by Charles Bailie