The CCMA

Free to use, and slower than anybody tells you.

There is no fee to refer a dispute, and a costs order at the end of an arbitration is rare — section 138(10) gives the commissioner a discretion under law and fairness, and Rule 39 sets out what it turns on. What it reliably costs is time: a year to eighteen months from dismissal to award is normal, and neither side can make that go faster.

021 000 0000 What makes a dismissal unfair

A plain institutional hearing room, empty: two identical trestle tables facing each other across a gap with matching stacking chairs at each, a third small table square between them at the head, bare walls and a half-drawn blind at the far end. — A CCMA hearing room on any given morning. Two tables the same size, the same distance from the commissioner, and nothing about the room that tells you which side is which. That arrangement is the Act made into furniture.

Five stages

The route is the same whichever end of it you are at.

So it is set out once. Where the two sides differ is in what to do at each stage, which is the section after this one.

Referral

A form goes in — LRA 7.11 for a dispute about dismissal — served on the other party and filed with the CCMA. Thirty days from dismissal, ninety for an unfair labour practice. This is the whole of the deadline, and everything afterwards runs on the CCMA’s clock rather than yours.

Conciliation

A commissioner sits with both parties and tries to settle it. Usually about thirty days after referral, usually an hour or two, no evidence led and nothing said there may be used later. Most matters that settle, settle here.

The certificate

If it does not settle, the commissioner issues a certificate that the dispute remains unresolved. From that date there is a fresh thirty-day period to request arbitration, and it is missed surprisingly often by people who think the clock stopped.

Arbitration

Evidence, witnesses, cross-examination, and an award that binds. Three to nine months after the certificate depending on the region. The award is final: it is not appealed, it is reviewed, and only on narrow grounds.

Con-arb

Conciliation and arbitration on the same day, which the CCMA may set down for certain disputes. It saves months. It also means you arrive prepared to run the whole matter, or you do not arrive prepared at all.

Rule 25

You may not simply bring an attorney to an arbitration.

In arbitrations about dismissal for misconduct or incapacity, legal representation is not a right. The commissioner decides, weighing the complexity of the matter, the comparative ability of the parties to deal with it, and whether it is unreasonable to expect a party to appear without representation.

Both parties may agree to it, and the other side may refuse. So a real possibility on any misconduct matter is that you run it yourself. We prepare both employers and employees to do exactly that, which is a different service from appearing for you and it is priced as one.

What preparation costs

Three things, twice each

Where each side gets caught.

The certificate restarts a clock. Both sides forget this.

If you are the employer

Once conciliation fails you have a matter that can go quiet for weeks and then reappear. Diarise the thirty days from the certificate, because an employee who requests arbitration on day twenty-nine has done nothing wrong and you need to be ready.

If you are the employee

Thirty days from the date on the certificate to request arbitration. Not from the conciliation, from the certificate. Letting that lapse is the second commonest way a good dismissal case dies, after the first thirty days.

Nothing said at conciliation follows you into arbitration.

If you are the employer

You can make an offer at conciliation without it being held against you as an admission. That is the point of the without-prejudice rule, and it is why conciliation is where a weak matter should be closed.

If you are the employee

An employer offering money at conciliation is not admitting the dismissal was unfair, and refusing an offer is not an admission that your case is weak. Judge the offer against what an award would realistically be, not against what you feel you are owed.

A review is not an appeal.

If you are the employer

If the award goes against you, the Labour Court will not reconsider the merits. It asks whether the award is one a reasonable commissioner could have reached. That is a high bar, it takes eighteen months or more, and it is not a second bite.

If you are the employee

The same protects you when you win. An employer who takes an award on review is usually buying time rather than expecting to succeed, and you can apply to have the award made an order of court in the meantime.

Send us the referral form and the certificate.

Those two pieces of paper tell us which clock you are on and how much of it is left.

021 000 0000 Retrenchment instead