In order for us to understand what Unfair Dismissal is we first need to understand what the CCMA is all about. The CCMA (Commission for Conciliation, Mediation and Arbitration) is a statutory body set up under the auspices of the Labour Relations Act, 66 of 1995, as amended.
It is the body to which disputes of interest and right in the context of labour are referred for resolution. It is also permitted to delegate similar powers of dispute resolution to accredited forums such as the dispute resolution centres of bargaining councils which have jurisdiction in certain sectors, such as Metal & Engineering, Catering & Allied, and so on.
Should you have a dispute regarding unfair dismissal,
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Let’s deal with the CCMA as we have experienced it, mostly in its main Gauteng offices, and less often in smaller offices, which are often housed in the Department of Labour offices in those smaller centres.
Your first impression of the place when you are dealing with unfair dismissal at the CCMA is that many, many people are seeking redress against their employers and they arrive in droves, sitting and moving one by one in orderly queues at the registration desks on the ground floor. Many look incredibly despondent, many are probably illiterate and have no idea what to expect: some are more street-wise and sometimes, if you’re not having a lucky day, you will be met at the door by a tout trying to sell you services that you will more likely receive free if you have patience. If you feel you need expert help, you’re best advised to contact professionals such as the fair labour practice.
How can the fair labour Practice Help you with an Unfair Dismissal at the CCMA?
For people who have resources, approaching the CCMA directly may not be the ideal situation and they often seek out services such as ours to help them through the process as opposed to representation for the processes. Whilst we do charge for our services, we pride ourselves on the fact that we have a 90% success rate and we offer a service that is second-to-none, with clients being briefed and debriefed in great detail, nothing is missed.
Once your matter has been processed properly (you must do certain things to ensure that the Respondent employer is served with the application and all other notices), you will receive a Notice of Setdown from the CCMA informing you that your matter is to be conciliated or to be heard at a combination, namely Con-Arb
CCMA – processes for determining if it’s unfair dismissal (or other unfair action)
1 – Conciliation at the CCMA
If your case is set down for Conciliation, it means that you must attend a meeting at the CCMA which will be presided over by a trained Commissioner, who will listen to your BRIEF outline of the facts and ask the other party to do the same. The Commissioner will then separate you from the other party and you will be able to tell the Commissioner what it is you seek in redress and why. Then, you will be asked to step out, whilst the other side tells their part. This is done in this way so as not to taint the evidence that may be presented at arbitration, which will happen later. Also, it’s off the record and cannot be used in future proceedings – so if you make concessions at this stage, you are not held to those concessions at a later stage. Still confused? Contact the fair labour at our contact page.
Objective of Concilliation at the CCMA
The objective of Conciliation is to see if there is merit in settling the matter: this often entails the employer agreeing to pay the employee a sum of money, based on the salary at the time of dismissal. Very often, the parties cannot agree to settle and the Applicant party must thereafter make out a Request for Arbitration for a ccma unfair dimissal, which must be served on the employer as well as on the CCMA. This must be accompanied by the Certificate of Outcome indicating that the matter was not resolved at Conciliation. If the matter is one that only a Labour Court can adjudicate, the certificate will indicate this, otherwise it will indicate that it can proceed to Arbitration at the CCMA. As you can see a unfair dismissal hearings at the CCMA can become very involved – but not to worry as we are professionals when it comes to labour relations and unfair dismissal cases at the CCMA.
2 – Con-Arb at the CCMA
If your unfair dismissal matter is set down for the combination of Con-Arb at the CCMA, then the same conciliation process takes place, but if that fails, then the Commissioner may start a process of arbitration or ask another Commissioner to do so, after issuing a Certificate of Outcome. If there is little time left in the day, the matter will be returned to the Case Manager, who will set it down for a future date.
If there is sufficient time left in the day and available Commissioners, the matter will proceed to arbitration immediately following a failed conciliation. This means that the parties should be prepared to continue the discussion immediately.
3 – Arbitration at the CCMA
Arbitration is a formal, on-the-record process, presided over by a trained Commissioner of the CCMA who will listen to the parties’ evidence and arguments. The Commissioner will guide the process and caution people if they are not behaving properly or becoming disruptive. At this process, the parties may introduce evidence (new or old) which is corroborated by documents, photographs, etc. contained in a bundle which each party must have shared with the other and which is handed up to the Commissioner when the process commences.
The Commissioner will weigh up the evidence regarding your ccma unfair dismissal case and come to a conclusion after the ccma unfair dismissal hearing has closed and will issue an Arbitration Award, usually within 2 to 3 weeks of the hearing. This will be in writing. The award is usually considered final and binding on both parties. We have a 90% success rate in cases of CCMA heard unfair dismissal cases.
4 – Recission at the CCMA
The only ground for obtaining a rescission of an Arbitration Award is that there was a mistake common to the parties, namely that one of the parties was not present at the hearing and has good reason to show why they were absent. A rescission application must be completed within 2 weeks of receipt of the Award and must show good grounds.
5 – Review of a CCMA Award
A review Application is made to the Labour Court and may only be made on strict grounds as provided for in the Act and those are that the Commissioner committed misconduct in relation to his/her duties as a Commissioner or that he/she committed a gross irregularity in conducting the proceedings or that he/she exceeded his/her powers as a Commissioner, or that the award was improperly obtained.
You should always take competent advice when seeking to rescind or review arbitration awards as it could land up being expensive and of no value to you especially in a ccma unfair dismissal case.
In the case of any work-related conflict, dismissal or unfair conduct contact us on 011 728 9846 or 011 728 8733 or click on CCMA unfair dismissal