Employment and Labour Law

 

 

 

Yes, it is possible, but not guaranteed.

The employer and employee may agree in writing to postpone arbitration and submit such an agreement to the CCMA or bargaining council not less than seven (7) days before the hearing.

If there is no agreement either party may apply on affidavit for postponement, but a mere application does not guarantee that postponement will be granted.
 

When the employee has not managed to refer the dispute to the CCMA or bargaining council within thirty (30) days, the employee must apply for condonation for the late referral, in other words, to excuse or condone the late referral.

A condonation application must be completed by the employee or his/her representative and a copy thereof must be served on the employer and returned to the CCMA or bargaining council with proof of service on the employer attached to the referral form. The employer has the right to respond to the condonation application by affidavit within five days of receiving it.

The condonation application should deal with the points listed below, with the employer being entitled to respond accordingly:

  • degree of lateness;
  • reason why the referral is late;
  • prospects of success (the employer may explain why it is likely to succeed in defending the claim against it);
  • prejudice the employer will suffer if the matter would proceed (for example, the employer would be prejudiced by a long delay if witnesses are no longer available);
  • any other relevant factors.
     

In the event that the parties reach an agreement to settle the dispute at conciliation – or during arbitration proceedings – the terms of the settlement will be included in a signed settlement agreement.

That signals the end of the dispute that has been referred to the CCMA or bargaining council.

An application to the Labour Court to set aside or correct a CCMA decision.

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CCMA and Labour Court

South Africa's labour dispute resolution system utilizes two key bodies: the CCMA and the Labour Court.  The CCMA (Commission for Conciliation, Mediation and Arbitration) is the primary forum for most workplace disputes, offering free and informal services like conciliation, mediation, and arbitration to resolve common issues such as unfair dismissal and unfair labour practices. CCMA arbitration awards are generally binding and can be made Labour Court orders. For more complex or serious labour law matters, including reviews of CCMA decisions, the Labour Court provides a formal legal setting. This specialized court handles intricate cases like complex discrimination, strikes, and interpretation of labour legislation.  Regardless of whether your matter is suited for the CCMA or the Labour Court, Aucamp Attorneys offers expert guidance and representation to protect your rights throughout the process.

The CCMA vs. The Labour Court: Navigating Workplace Disputes in South Africa

Understanding Your Options

When facing a workplace dispute, employees and employers have two primary avenues for resolution: the Commission for Conciliation, Mediation and Arbitration (CCMA) and the Labour Court. 

The CCMA: Focus on Conciliation and Informal Resolution

1. Jurisdiction - Primarily deals with unfair dismissals, unfair labor practices, and disputes related to collective bargaining agreements.
2. Process: 

  • Conciliation - The initial step is conciliation, where a CCMA commissioner facilitates a voluntary settlement between the parties.
  • Arbitration - If conciliation fails, the matter proceeds to arbitration, where an arbitrator hears evidence and renders a binding decision. 

3. Advantages:

  • Relatively Quick - Generally quicker than the Labour Court process.
  • Informal - Less formal proceedings compared to the Labour Court.
  • Cost-Effective - Often more affordable than litigation.

4. Limitations:

  • Limited Compensation -  Maximum compensation for unfair dismissal is 12 months' salary.
  • May not be suitable for complex legal issues.
The Labour Court: For Complex and High-Stakes Disputes

1. Jurisdiction - Deals with more complex legal matters, including:

  •     Reviews of CCMA arbitration awards.
  •     Appeals against Labour Court judgments.
  •     Applications for interdicts to prevent unlawful conduct.
  •     Disputes involving large-scale retrenchments.
  •     Matters of public interest.

2. Process:

  • Formal Proceedings - Involves formal legal proceedings, including the presentation of evidence, cross-examination, and legal argument.
  • Judicial Decisions -  Judges preside over cases and deliver judgments.

3. Advantages:

  • Potential for Higher Compensation - In certain cases, the Labour Court may award higher compensation than the CCMA.
  • Comprehensive Legal Review - Provides a more in-depth and comprehensive legal review of the dispute.

4. Disadvantages: 

  • Lengthy Process - Significant delays are common due to court backlogs.
  • Higher Costs - Involves higher legal costs due to the complexity of the proceedings.
Key Differences 

Feature CCMA Labour Court
Jurisdiction Primarily unfair dismissals, unfair labour practices, collective bargaining disputes Complex legal matters, reviews of CCMA awards, interdicts
Process Conciliation followed by arbitration Formal court proceedings with judges
Speed Generally quicker Significantly slower due to backlogs
Cost Typically more cost-effective Involves higher legal costs
Compensation Limits Maximum 12 months' salary for unfair dismissal Potential for higher compensation in certain cases
Complexity Suitable for less complex disputes Suitable for complex legal issues

Choosing the Right Forum

The choice between the CCMA and the Labour Court depends on several factors, including:

  • The nature of the dispute - The complexity and nature of the dispute will significantly influence the choice of forum.
  • Desired outcome - The desired outcome, including the level of compensation sought, will also factor into the decision.
  • Cost and time - Consider the potential costs and time involved in each forum.
  • Legal representation - The need for legal representation may vary depending on the chosen forum.

Lodging a Dispute with the CCMA: A Step-by-Step Guide

Navigating the CCMA dispute resolution process can be daunting.  Here's a simplified breakdown of the basic steps involved:

  1. Determine if the CCMA has Jurisdiction - The CCMA primarily handles disputes relating to unfair dismissal, unfair labour practices, and certain aspects of collective bargaining.  Ensure your dispute falls within their jurisdiction.  Certain disputes, like those involving intricate legal interpretations or those specifically excluded by legislation, might need to go directly to the Labour Court.
  2. Complete the Referral Form (LRA Form 7.1) - This form is essential for formally referring your dispute to the CCMA.  It requires detailed information about the parties involved, the nature of the dispute, and the desired outcome.  Accuracy and completeness are crucial.  You can find this form on the CCMA website.
  3. Serve the Referral on the Other Party -  You must provide the other party (e.g., your employer) with a copy of the completed referral form (LRA 7.1).  Proof of service (e.g., a signed receipt, fax confirmation, or affidavit from the person who served the documents) is vital.  The CCMA will not proceed without proof that the other party is aware of the dispute.
  4. File the Referral with the CCMA -  Submit the original referral form (LRA 7.1), along with proof of service, to the nearest CCMA office.  There are various ways to submit, including in person, by post, or sometimes electronically.  Check the CCMA website for the most up-to-date submission methods.
  5. Conciliation -  The CCMA will schedule a conciliation meeting where a CCMA commissioner will assist both parties in trying to reach a mutually agreeable settlement.  This is an informal process aimed at resolving the dispute through negotiation.
  6. Arbitration (If Conciliation Fails) -  If conciliation is unsuccessful, the dispute may be referred to arbitration.  In arbitration, a different CCMA commissioner will hear evidence from both sides and make a binding decision (an award).  Sometimes the parties agree that the same commissioner can conduct both conciliation and arbitration (con-arb).
  7. Representation -  While legal representation is not mandatory at the CCMA, it is often advisable, especially if the matter is complex.  An attorney can guide you through the process, prepare your case, and represent you at the hearings.

Important Considerations

  • Time Limits There are strict time limits for referring disputes to the CCMA.  Don't delay!  Missing these deadlines can jeopardize your case.  Generally, you have 30 days from the date of the incident to refer a matter to the CCMA.
  • Evidence Gather all relevant documentation and evidence related to your dispute (e.g., employment contracts, payslips, disciplinary records, witness statements).
  • CCMA Rules and Procedures Familiarize yourself with the CCMA's rules and procedures.  They are available on their website.
  • Legal Advice  It's highly recommended to seek legal advice from an attorney specializing in labour law.  They can assess your case, advise you on your rights and options, and represent you at the CCMA.  Aucamp Attorneys can assist you with your CCMA matter.

Lodging a Dispute with the Labour Court: A Step-by-Step Guide

The Labour Court handles more complex labour disputes than the CCMA.  Navigating this court requires a more formal approach.  Here's a simplified overview:

1. Determine Jurisdiction: The Labour Court has jurisdiction over specific matters defined in the Labour Relations Act (LRA) and other related legislation.  These often include:

  • Reviews of CCMA awards.
  • Interdicts (urgent court orders).
  • Disputes involving complex legal questions.
  • Matters relating to strikes and lockouts.
  • Cases of discrimination.
  • Certain contractual disputes.
  • It's crucial to confirm that your matter falls within the Labour Court's jurisdiction.

2. Legal Representation is Highly Recommended:  Due to the complexity of Labour Court proceedings, it is strongly advised to engage an attorney specializing in labour law.  They will guide you through the process, draft the necessary legal documents, and represent you in court.

3. Drafting the Necessary Documents:  The specific documents required will depend on the nature of your dispute.  Common documents include:

  • Statement of Claim Sets out the nature of your claim, the legal basis, and the relief sought.
  • Referral to the Labour Court (Form LRA 7.11) This form is used when referring a matter from the CCMA to the Labour Court for review.
  • Affidavits Sworn statements providing evidence in support of your claim.
  • Notices and other court process documents These are used to initiate or respond to legal proceedings.

4. Serving the Documents:  The legal documents must be formally served on the other party (e.g., your employer).  Strict rules govern how service must be effected.  Personal service by the sheriff is often required. Proof of service is essential.

5. Filing the Documents with the Labour Court:  The original documents, along with proof of service, must be filed with the Registrar of the Labour Court at the relevant court.  There are specific procedures and time limits for filing.

6. Opposing Party's Response: The other party will have an opportunity to respond to your claim by filing their own legal documents (e.g., a Statement of Defence).

7. Court Proceedings:  The matter will then proceed through various stages, which may include:

  •  Pre-trial conferences: To narrow down the issues and explore settlement possibilities.
  •  Hearings: Where evidence is presented and legal arguments are made before a judge.

8. Court Order: The judge will issue a court order, which is legally binding on both parties.

9. Enforcement: If the court order is not complied with, further legal steps may be necessary to enforce it.

Key Considerations

  • Time Limits Strict time limits apply to various steps in Labour Court proceedings. Missing these deadlines can severely prejudice your case.
  • Legal Costs Labour Court cases can be expensive due to legal fees and other costs.
  • Evidence Gathering and presenting compelling evidence is crucial.
  • Court Rules and Procedures Labour Court proceedings are governed by specific rules and procedures that must be followed.

Expert Labour Law Representation in the CCMA & Labour Court 

Aucamp Attorneys provides skilled and strategic legal services. Contact us for a consultation.