30 May 2022

CCMA awards - what attorneys should keep in mind when representing employees

Submitted by SchoemanLaw Inc

By Samad Hoosen

CCMA AWARDS – WHAT YOU COULD ASK FOR ON BEHALF OF YOUR CLIENT?

Introduction

The Commission for Conciliation, Mediation and Arbitration(CCMA), established by the Labour Relations Act 66 of 1995 exists to promote labour market stability, social justice and job security. The Commission provides a forum for both employees and employers to lodge disputes for a range of workplace issues that include unfair labour practices, wage disputes, unfair discrimination and unfair dismissals. The Commission also aims to be cost-effective, innovative and ethical.

How to Approach the CCMA for Assistance

As an alternative dispute resolution forum, all stages of the process need to be made as simple as possible. For example, an aggrieved employee who believes they were unfairly dismissed, need only download an LRA 7.11 form from the CCMA’s website, complete it with some essential details, before emailing it to the CCMA and their now previous employer. The Commission will then keep the parties informed using these email addresses and a date for conciliation and arbitration will be set down. It’s important to note here that the client, or their representative has only thirty days to refer an unfair dismissal case to the CCMA. Any later and they would need to also make a condonation for late referral application.

In Con-Arb proceedings, parties are allowed to bring evidence both in the form of documents but also to call witnesses. The Commissioner appointed to the case will then allow each party to state their case in turn. Parties are encouraged to question the facts put on record by their opposition but the usually strict rules of court process are relaxed in this forum in favour of expediency and fairness.

Some Awards are Unique

What could an employee ask for in an attempt at conciliation? S193 outlines the awards one can request in an arbitration for an unfair dismissal dispute, namely;

Reinstatement, either in the same work or other reasonably suitable work or compensation, up to a limit of 12 months’ remuneration in cases of unfair dismissal that were not automatically unfair.

It is important to note that these solutions are the limited awards available at the arbitration stage and form the basis of requests that later reach the labour courts, however, they are not all an employee may ask for at the CCMA. As the dispute resolution process begins with conciliation, a consensus seeking process consisting mostly of discourse, the parties are able to put forward solutions that best fit them. Compensation is incredibly helpful in preparing an employee to return to their job search, however a positive written reference may assist an employee who has already begun the search pending the outcome of the dispute resolution process. Similarly, an employee may ask for a waiver of a restraint of trade clause in their employment contract in the hope that they become employable elsewhere.

It's incredibly important to be clear as to what would actually help your client as once the attempt at conciliation closes and a certificate of non-resolution is dispensed, an employee can only request the limited solutions offered through arbitration.

Notable mentions

We should also mention that cases involving discrimination allow six months for referral to the CCMA. Another important note is that legal representation is generally not allowed at conciliation unless the commissioner has approved an application for legal representation. Lastly, while you may opt out of settling at the end of a conciliation process, you may not do the same at arbitration. An arbitration award is binding and once a final decision is made, it can be enforced against the unsuccessful party. 

Conclusion

To the average person, the CCMA has proven to be more efficient and its process more approachable than litigation at our courts. After reading the above, you should know enough to begin the process but if you want a better chance at succeeding, you should of course seek personal and comprehensive legal advice.

If you are an employer or employee, currently in dispute due to a dismissal, wages, work conditions or even discrimination, the CCMA can conciliate or arbitrate your dispute. We suggest an experienced attorney at your side when you do, which you can find by contacting SchoemanLaw Inc.

Contact an attorney at SchoemanLaw for your commercial and employment law needs by visiting our website at www.schoemanlaw.co.za.

Samad Hoosen
SchoemanLaw Inc - www.schoemanlaw.co.za

SchoemanLaw Inc

SchoemanLaw Inc Attorneys, Conveyancers and Notaries Public is a boutique law firm offering its clients access to high quality online legal documents and agreements, together with a wide range of legal services. The firm has an innovative and entrepreneurial mindset that distinguishes it from other law firms. We apply our first-hand understanding of the challenges facing entrepreneurs (regardless of their business size) to develop proven, practical solutions incorporating legal compliance, risk aversion and business sense. We achieve this by offering clients tailored, yet holistic support comprising of legal gap analysis, the design of tailored legal solutions and the practical implementation thereof through training and automation. With your personal interests in mind, our ultimate aim is to implement measures that protect the results of your hard work as effectively as possible.