Introduction:

The Commission for Conciliation, Mediation, and Arbitration (CCMA) and Bargaining Councils are important bodies in South Africa that handle disputes between employers and employees.

When an employee refers an unfair dismissal dispute to the CCMA or a bargaining council, employers need to understand the process and their obligations.

This guide aims to provide essential information for employers in such situations.

  1. How to Refer an Unfair Dismissal Dispute: When an employee wishes to refer an unfair dismissal dispute, they must follow these steps:

1.1. Fill in the LRA 7.11 Referral Form: The employee must complete and sign the LRA 7.11 referral form.

1.2. Serve the Referral Form on the Employer: The employee must serve a copy of the completed referral form to the employer by hand delivery, fax, e-mail, or registered post. They must be able to provide proof that the employer received the form.

1.3. Deliver the Referral Form to the CCMA: The employee must submit the referral form to the CCMA along with proof of service on the employer.

1.4. Condonation for Late Referral (if applicable): If the employee fails to refer the dispute within thirty (30) days of the date of dismissal, they must complete an application for condonation to request permission for late referral.

  1. Time Frames for Referring an Unfair Dismissal Dispute: An employee has thirty (30) days from the date of dismissal or the employer’s final decision to dismiss to refer an unfair dismissal dispute to the CCMA or bargaining council. This timeframe includes weekends and public holidays, except when the last day falls on a Sunday or public holiday.
  2. Date of Dismissal: The date of dismissal depends on the circumstances:

2.1. Dismissal without Notice: The date of dismissal is either the date the employment contract terminated or the date the employee left the employer’s service.

2.2. Dismissal with Notice: The date of dismissal is either the date the notice period expired or the date the employee received all outstanding salary.

2.3. Fixed-Term Contracts: The date of dismissal is either the date the employer offered to renew the contract on less favorable terms or the date the employer notified the employee that the contract won’t be renewed.

2.4. Failure or Refusal to Reinstate/Re-Employ: The date of dismissal is the date the employer refused to reinstate or re-employ the employee.

2.5. Failure to Allow Employee to Resume Work: The date of dismissal is the date the employer refused to allow the employee to resume work.

3.Condonation for Late Referral: If the employee fails to refer the dispute on time, they must apply for condonation to excuse the late referral.

The condonation application should address the reasons for lateness and any relevant factors.

  1. Con-Arb Hearings: Con-Arb (Conciliation-Arbitration) is a process where arbitration begins immediately after unsuccessful conciliation. Certain disputes must proceed through Con-Arb, and both parties must be prepared for the arbitration stage.
  2. Representation at Proceedings: At conciliation, employers may be represented by directors, employees, or members of close corporations. Employers’ organizations’ members can also represent employers. Legal representation is allowed in arbitration, except in specific cases.
  3. Settlement Agreements: If the parties reach an agreement during conciliation or arbitration, the terms are included in a signed settlement agreement. Failure to honor the agreement may lead to enforcement through appropriate legal channels.
  4. Arbitration and Remedies: If the dispute remains unresolved, the commissioner will issue a certificate, and arbitration proceedings will be initiated. The commissioner may order reinstatement, re-employment, or compensation if the dismissal is found to be unfair.
  5. Decision and Notification: The parties will receive a decision from the CCMA or bargaining council within fourteen (14) days of the hearing.

Conclusion: Understanding the process of referring disputes to the CCMA or bargaining council is crucial for employers in South Africa.

Adhering to the prescribed procedures and timeframes will contribute to a fair and just resolution of disputes between employers and employees.

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