You took the plunge open the case at the CCMA, but the commissioner ended up being against you.
Either the commissioner was biased, or the commissioner did not take into account the evidence you led and made a ruling against you. What can you do next? Do you have any legal rights?
The first important point to note is that you only have six weeks from the date of the arbitration award from the CCMA to take your case to the labour court.
The following disputes cannot be referred to the CCMA:
- In cases where the complainant is an independent contractor,
- The dispute is not related to the Labour Relations Act (LRA); National Minimum Wage Act (NMWA); Employment Equity Act (EEA); or Basic Conditions of Employment Act (BCEA). Disputes under the BCEA, together with unfair dismissal or unfair retrenchment disputes may be referred to the CCMA.
- The employer operates in a sector where there is a bargaining council or a statutory council. In that case the dispute, other than unfair discrimination disputes, must be referred to that bargaining council.
- When there is a private agreement between the parties regulating how their disputes should be resolved, such as: through private arbitration. When this occurs, the parties to the dispute are required to follow the procedures specified in the private agreement (exceptions can be made, e.g. when the employer expects the employee to pay for the private dispute resolution).
Taking Your Case to the Labour Court
In the event of a labour dispute, you must act immediately. In the case of an unfair dismissal dispute, you have only 30 days from the date on which the dispute arose to open a case, if the case is an unfair labour practice, you have only 90 days and, with discrimination cases, you have six months.
Notice of Motion and Founding Affidavit.
You must fill in a document called a Notice of Motion and a Founding Affidavit.
Notice of Motion has a specific format that contains the names of the parties and the kind of outcome that you want from the CCMA.
The supporting affidavit is where you lay out the grounds as to why you are taking the case to the Labour Court.
The labour court will not easily overturn a CCMA case. They will only do so on specific grounds that you need to show in your affidavit.
The Labour Court judge would be interested to know why the CCMS commissioner had made an unreasonable decision.
An unreasonable decision is a decision that was not attached to the facts or the law that was relevant at the time.
You can also make an application to the Labour Court to show why the commissioner had committed some kind of misconduct against you. In other words, they did not conduct a fair process when they had the CCMA hearing, they were biased, they didn’t give you a fair opportunity to lead your case, they improperly favoured the other side etc.
These are things that you can challenge at the Labour Court.
Once you complete that document, you then serve and file that document on all of the parties. It’s very important to note that this is an affidavit which means that it must be commissioned by a Commissioner of Oaths
After you serve and file that document, the CCMA will release a recording of their CCMA proceedings. That recording needs to be transcribed and it then needs to be served and filed in all the parties’ documents. The opponents would then have an opportunity to oppose your application. They will file their own affidavit in response to your affidavit in regard to the transcription of the CCMA recordings.
On the day of your hearing, the judge’s clerk will call your case number.
This will be your opportunity to speak and present your case. The opponent will then get their chance to speak and then the judge will make their ruling.
Referring a labour dispute to the Labour Court is a fairly legal process and it requires knowledge of the legal processes of the Labour Court. It is highly suggested that you utilize the services of a specialist labour lawyer to get these documents prepared and your case argued in court.
