This is a complete guide to the CCMA process in South Africa.
In this guide you will learn:
- How to prepare for a case at the CCMA
- How conciliation works
- How to present your evidence at the CCMA
- What forms are required to refer your case to the ccma
- Lots more
Let’s get started.
Introduction
Hello and welcome. My name is Aslam Moolla and I am a registered Attorney at the National Legal Practice Council (Registration number 65753).
My team and I organised this guide to help you understand the CCMA process for Unfair Dismissal.
The practical steps are as follows:
- Go through the guide.
- After going through the guide – select which steps you will start on immediately for your case.
- If there are forms to fill in – fill them in – to get your case heard.
At the end of this process, we hope that you will be feeling more confident about where to get help. If you still require assistance on what to do, please reach out to us, and we will help you as much as we can.
Here is what’s to come:
Chapter 1 – what is the CCMA and what kind of cases can they hear
Chapter 2 – How to refer a case to the CCMA (with the CCMA form)
Chapter 3 – how long does it take for a case to be heard at the CCMA
Chapter 4 – how to prepare for conciliation
Chapter 5 – HOW TO WIN YOUR ARBITRATION CASE AT THE CCMA (WITH EXAMPLE STATEMENTS)
Chapter 6 – DO I NEED A LAWYER FOR THE CCMA? – LEGAL REPRESENTATION AT THE CCMA
Chapter 7 – Frequently Asked Questions regarding the CCMA Process
Chapter 1 – what is the CCMA and what kind of cases can they hear
The CCMA is created to resolve workplace disputes between employers and employees.
Any employee can refer a case to the CCMA.
The CCMA typically hears unfair dismissal cases and cases related to unfair labour practices by companies.
Most importantly, the CCMA is free to use and there are no fees involved.
The next chapter will cover how to refer a case to the CCMA:
Chapter 2 – How to refer a case to the CCMA (with the CCMA form)
You may have to go to the Bargaining Council and not the CCMA. This depends on the industry you are working in, you will have to contact the CCMA or the respective bargaining council if there is one in your industry.
For clarity on whether it should be the CCMA or a bargaining council, you may approach the CCMA directly and/or phone the national call centre on 0861 16 16 16.
Please read further below for a detailed step by step guide on how to refer your case to the CCMA or Bargaining Council.
Step 1: Get your case registered
The first step is to get your case registered at the CCMA.
Practically, go to your local CCMA (check their website for one closest to you) and ask for a CCMA case referral form (also known as LRA Form 7.11.). These forms are available from the CCMA offices and from our website. Once you have the form, fill in the information as shown on the form.
Step 2: Deliver a copy of the referral form to your ex-employer
Once you have completed the form, you have to deliver a copy to your ex-employer.
This can be done via fax, registered mail, and courier or delivered in person.
It’s very important that you are able to prove that a copy was delivered to them – in case they say they did not get it. So keep a copy of proof that you served the form.
Step 3: File your referral form at the CCMA and attach proof of delivery on the employer
You do not have physically deliver the filled in referral form to the CCMA. You can also fax the form or post it back to the CCMA.
Make sure that a copy of the proof that the form had been served on the ex-employer is also attached.
Step 4: Wait for a hearing date from the CCMA
The CCMA will inform both you and the ex-employer as to the date, time and venue of the first hearing – which is usually conciliation.
Step 5: Attend the Conciliation hearing
Conciliation is a flexible and informal process to see if the case can be settled between the parties. No evidence is lead.
If no settlement agreement is reached, the CCMA Commissioner will issue a certificate stating that the case is unresolved at Conciliation stage. The next step in arbitration.
Tip: Try and settle your case at conciliation because the settlement is still in your hands. Once it goes to arbitration, then its in the Commissioners hands.
Step 6: Fill in the request for Arbitration form
If the case was not settled, you must set it down for arbitration.
In order to have an arbitration hearing, you have to complete a request for arbitration form, (also known as LRA Form 7.13.). You can also get this from the CCMA or here on our website.
A copy must be served on the ex-employer just like earlier.
Step 7 Attend your arbitration
Arbitration is a formal process which involves both you and the ex-employer leading evidence like witnesses and documents to prove whose case is stronger.
This requires preparation on your part because you may have to prove that the employer treated you unfairly. This is done through evidence which you must lead. Legal representation may be allowed.
How long does it take before the CCMA gives its ruling?
The commissioner will make a final and binding decision, called an arbitration award, within 14 days.
The next chapter will cover how long a case takes at the CCMA
CHAPTER 3: HOW LONG DOES A CASE TAKE AT THE CCMA
A CCMA case in South Africa takes between 10-12 weeks to be finalised – provided that there are no postponements or interruptions to the case.
If you have been dismissed, you will need a plan of action to provide for you and your family during this period. Here is a guide to how long it takes for a case to be heard at the CCMA.
The CCMA has been specifically created by the Labour Relations Act to resolve labour disputes quickly without a formal legal process like a Court.
Each stage of the CCMA (such as Conciliation and Arbitration) is meant for employers and employees to find common ground and see how the case can be resolved without a complex legal battle.
After you have registered your case at the CCMA you then wait for a date for conciliation.
It usually 14 days for the CCMA to give you a date for conciliation
Remember: Conciliation is a flexible and informal process to see if the case can be settled between the parties.
It is not legally binding and meant to be a quick process to see if the parties can “meet each other halfway”.
Generally a date for conciliation is provided by the CCMA within 14 days after you have registered your case.
If Conciliation fails, then the CCMA rules stipulate that you must get a date for arbitration within 21 days
Remember: Arbitration is a formal process which involves both you and the ex-employer leading evidence like witnesses and documents to prove whose case is stronger.
Generally a date for arbitration is provided by the CCMA within 21 days after Conciliation is heard.
After Arbitration is heard, you will get a ruling from the CCMA within 14 days
After the hearing, wait for the ruling from the CCMA. The commissioner will make a final and binding decision, called an arbitration award, within 14 days.
So taking above into account, a CCMA case in South Africa takes between 10-12 weeks to be finalised – provided that there are no postponements or interruptions to the case.
If you have been dismissed, you will need a plan of action to provide for you and your family during this period while the CCMA is hearing your case.
Chapter 4: How to prepare for the CONCILIATION PROCESS
To recap:
Conciliation is simply an informal and flexible process in which a Commissioner from the CCMA assists you and the ex-employer to reach a settlement agreement. It is meant to be a quick and inexpensive way of resolving your case.
What to expect at the Conciliation hearing?
The most important thing is to be calm because there is no evidence or documents to be lead. The Conciliation hearing is just to see if the matter can be settled.
If the matter cannot be settled, then it will be set down for arbitration.
Before you begin, make sure to plan what outcome you want from the case.
In other words, do you want your job back, or do you want to be compensated for what happened to you? Decide before hand and decide if you will take a settlement.
Let’s assume that you have received your date from the CCMA. Please read further below for a detailed step by step guide on how to present yourself on the day of the Conciliation Hearing:
Step 1: Arrive at the CCMA at least 15 minutes before the time set down
Step 2: Go to the reception desk and give your name. The person will tick off that you arrived
Step 3: Do not talk to the employee or their legal representative. Simply wait for the Commissioner to arrive. The Commissioner will then call out your name and your ex-employer’s name
Step 4: You then follow the Commissioner to a private room. Address the Commissioner simply as “Commissioner’
When you enter the room, get your documents organized. when the commissioner is ready give a summary of your case.
For example, “Hello Commissioner. My name is John from Durban. I am at the CCMA today for an unfair dismissal case against my former employer. I have been with the company for 2 years in the position of Admin Manager. I believe that they have unfairly dismissed me because they did not have a legal reason to do so.”
Step 5: If your ex-employer does not arrive, and is still not there after 30 minutes, ask the Commissioner to give you a certificate of non-resolution. Make sure to get a copy
Step 6: Fill in the request for Arbitration form
If the case was not settled, you must set it down for arbitration. In order to have an arbitration hearing, you have to complete a request for arbitration form, (also known as LRA Form 7.13.). You can also get this from the CCMA or here on our website. A copy must be served on the ex-employer just like earlier.
Step 7 Wait for your Arbitration Date.
Which brings us to the next chapter – how to prepare for your arbitration case.
Chapter 5: HOW TO WIN YOUR ARBITRATION CASE AT THE CCMA (WITH EXAMPLE STATEMENTS)
To recap:
Arbitration is formal process in which a Commissioner from the CCMA hears evidence to decide on whether the law was followed in your case.
After hearing both sides and seeing the evidence before him, the Commissioner will decide the outcome of the case, by issuing an award.
The decision is legally binding on the parties, and it ends the dispute. Arbitration awards are then sent to the parties within 14 days of the arbitration.
What to expect at the Arbitration hearing?
An arbitration is a new hearing. This means that the evidence concerning the dismissal is heard afresh before the CCMA.
A CCMA Arbitration case generally involves four stages. The stages are –
Stage 1: Opening statement;
a. Summarise the gist of why you are at the CCMA and what outcome you are looking for
b. Also state how many witnesses you will be calling and what documents you will be relying on.
c. Indicate if you have a contract of employment, your length of service, salary at dismissal and whether you have any disciplinary records
d. For example:
“Hello Commissioner. My name is John from Durban. I am at the CCMA today for an unfair dismissal case against my former employer. I have been with the company for 2 years in the position of Admin Manager. I believe that they have unfairly dismissed me because they did not have a legal reason to do so. I will be calling 2 witnesses. I also have documents such as my employment contract. My salary at the time of dismissal was R 12 500. Thank you”
e. Remember to be calm and confident.
Stage 2: Preliminary issues
f. If you filed your dismissal 30 days after the date of dismissal, then that is an issue that has to be dealt with now. Meaning you will have to explain why you were late and ask the CCMA to condone your late filing of the case.
g. Other preliminary issues may include applications for legal representation, objections to jurisdiction, whether the correct party has been cited , whether the person is an employee or an independent contractor
h. The Commissioner must decide on the preliminary point before proceeding with the arbitration. This means you will get a ruling before going any further.
Stage 3: Hearing of evidence
i. Essentially this stage focuses on the evidence.
j. The 2 main questions are: was the reason for the dismissal fair and was a proper procedure followed
k. Both parties will lead their evidence to prove their cases. Usually the employer will start (if the employee has proved that they were dismissed)
l. Evidence can take the form of documents, or witnesses.
m. Who wins the case depends on the evidence presented. The stronger the evidence, the better the chance of winning your case,
Stage 4: Closing statements
n. This is the last stage. Both parties have already led their evidence. What remains is a for the parties to close their case
o. Usually parties will summarise the facts of the case, what legal points they rely on and why the commissioner must rule in their favour.
You will then get an award. The rules states that The CCMA must issue a written award, together with brief reasons, within 14 days after the end of the arbitration process.
Do I need to bring witnesses to Arbitration?
Yes. The Arbitration is a formal process meant for the hearing of evidence or witnesses. If you do not being evidence, you may lose the case.
Can I claim for costs at the CCMA?
In terms of S138(10) of the Act a commissioner may include an order of costs if a party or person who represented the party in the proceedings acted in a vexatious or frivolous manner:
(a) by proceeding with or defending the dispute in the arbitration proceedings; or
(b) in its conduct during the arbitration proceedings.
The CCMA commissioner may order someone to pay the other party for certain expenses incurred in having a dispute resolved through arbitration.
Chapter 6 – DO I NEED A LAWYER FOR THE CCMA? – LEGAL REPRESENTATION AT THE CCMA
Yes. Even though the CCMA process is meant to be informal, companies will often come to the CCMA with a lawyer or a person from Human Resources to run the case. While the employee who referred the case is often inexperienced and is at the CCMA probably for the first time.
Therefore it becomes unfair to the employee because it is not an equal battle ground. This is why we believe that employees should be legally represented at the CCMA.
The general rule is that for misconduct or incapacity cases, a lawyer has to apply for legal representation.
There are a set of factors that the lawyer will use to justify why you require legal representation for that case.
If you refer any other case (for example constructive dismissal) you may be legally represented without the lawyer applying for legal representation.
Labour Law is regarded as specialist field of law. It has its own rules and requirements. Make sure that you hire a specialist labour lawyer who understands when to apply for legal representation at the CCMA and what steps to take to do so.
Chapter 7 Frequently Asked Questions regarding the CCMA Process
How do I present my case verbally?
The most important thing is to be calm. Address the Commissioner as Mr or Madam Commissioner. The CCMA is meant to be a forum of fairness.
You need to be calm so that you are in the right emotional state to win your case.
How much does the CCMA charge for Conciliation?
The CCMA is a free and fair forum created by the Labour Relations Act and does not charge its users to refer a case.
You do not pay for Conciliation or Arbitration.
Do I need to bring witnesses to Conciliation?
No because conciliation is an informal process. There is no hearing of evidence or witnesses. That is only done at arbitration.
What is the con-arb process at the CCMA?
Con-arb is basically a process which allow for conciliation and arbitration to take place as a continuous process on the same day. The process is compulsory in matters relating to-
• dismissals for any reason relating to probation; and
• any unfair labour practice relating to probation.
If no objection is received, this process may be used for any other dispute ( such as an unfair dismissal)
The CCMA must give both parties at least 14 days’ notice of the hearing date. If a party fails to appear or to be represented, the arbitration will continue on the scheduled date.
If the arbitration does not immediately follow the conciliation as set out in the notice, the arbitration must be scheduled either in the presence of both parties at the conciliation or by the CCMA giving 21 days’ notice to both sides
If I sign a settlement agreement at the conciliation hearing, is it legally binding on me?
Yes. In a Labour Court judgment of Cindi v Commission for Conciliation Mediation and Arbitration and Others [2015] 12 BLLR 1207 (LC) the Court indicated that a settlement agreement signed at the CCMA hearing is binding on both parties.
Good work. We covered
• How to prepare for a case at the CCMA
• How conciliation works
• How to present your evidence at the arbitration stage at the CCMA
Essentially your preparation is now complete. You have all your bases covered.
Please review the article above. In our experience it is very important to make sure you understand the CCMA process.
We believe that the better prepared you are – the better chance you will have of succeeding in your case at the CCMA.
We also prepared detailed articles like this on the CCMA process which covers at conciliation and arbitration. Click here to read that.
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Now we would Like to Hear From You
Conclusion
We hope you found this guide helpful.
Now We would like to hear what you have to say:
Which tip from today’s post do you want to try?
How are you preparing for your upcoming case?
Or maybe you are a business owner that has a question.
Either way, let us know by leaving a comment below right now.
