As of 24 April 2023, the CCMA amended many of their rules. The CCMA has indicated that these amendments promote greater social justice and equality. Some of the amendments will impact companies, and being familiar with the changes is essential.
Condonation for late referral to the CCMA
Employees have 30 days to refer unfair dismissal disputes to the CCMA. Previously, when an employee was outside of that time period, they would have to apply to the CCMA for condonation before the CCMA would accept their referral. Before the actual case could be heard, the CCMA would have to make a ruling on whether they would condone the late referral before the case could proceed to conciliation or arbitration.
This rule has now changed, and employees can apply for condonation at any point, and the commissioner can decide if condonation should be heard in writing or by way of oral evidence. It seems that it will thus be easier for employees who have referred their cases late to have condonation granted.
Previously, if a party could not attend an arbitration on the scheduled date, parties could apply for a postponement, or both parties could agree in writing to postpone the matter if the request was received at least 7 days before the scheduled matter. In such instances, the parties wouldn’t have to attend on the date to argue the postponement, as it was done by agreement.
However, the rules have changed to state that even where parties have signed an agreement to postpone, the CCMA still can refuse the postponement. Thus, if the CCMA has granted the postponement, parties must still attend. The significant change here is that postponement is not a right, and even where parties agree, the CCMA still has the final say about whether to grant it or not.
Non-attendance at the CCMA by the employee
Previously, if the employee who referred the case to the CCMA didn’t attend an arbitration, the case would be dismissed. Now, dismissing a case is the last resort, and the CCMA must invest a significant amount of time into determining where the employee is and if they have a valid reason for being absent.
If the employee can explain their absence, the matter will be rescheduled to another date. It is thus easier now for employees to not attend and simply make excuses for their absence, and have the matter rescheduled.
The rules on picketing have been amended to state that prior to the CCMA issuing a certificate that a matter remains unresolved in a matter where employees can strike, parties must first agree on picketing rules.
Closure of the CCMA
The days between 16 December and 7 January will still count in any calculation of time periods at the CCMA, and the CCMA will no longer close over December. Thus, companies must ensure that even during annual shutdowns, emails are monitored to ensure that emails from the CCMA are noticed.
The amendments to the rules show an even greater leniency towards employees. Thus, companies must ensure that they comply with all the correct procedures when disciplining and dismissing employees.
If you would like to learn more about the recent CCMA amendments, please do not hesitate to contact Invictus Group on 0861 737 263.