Invictus Group

The Role of The CCMA

9 January 2025

The Commission for Conciliation, Mediation and Arbitration, more commonly referred to as “the CCMA”, was established in terms of the Labour Relations Act, and is mandated to ​promote social justice and fairness within the workplace. Despite the CCMA’s functions, it notoriously promotes that employees should first attempt to resolve disputes with employers through internal procedures.

A common misconception is that the CCMA has the power to entertain all issues an employee may have with an employer. This is incorrect, as the CCMA’s jurisdiction is limited in terms of what issues can be entertained and what awards can be made. The most common work-related disputes that may be brought to the CCMA are - alleged unfair dismissals, alleged unfair labour practices, allegations of unlawful discrimination and allegations of monies owed to the employee or ex-employee.

A frustration many employers have is vexatious CCMA referrals from employees, meaning those allegations that the employer feels are unfounded, a waste of resources, and should not be entertained by the CCMA. It is important to note that, from an administrative perspective, should a disgruntled employee or ex-employee comply with the requirements of lodging a dispute at the CCMA, the CCMA is required to entertain same, and cannot “sift through” or unilaterally reject applications based on their perceived merit. However, as mentioned, not all workplace disputes can be referred to the CCMA, and the CCMA has no power to adjudicate disputes covered by collective agreements, bargaining councils or dispute resolution bodies, or disputes involving persons that are not considered employees under the auspices of the Labour Relations Act, including independent contractors, and the arbitration of retrenchments involving more than one person. The CCMA will try to mediate, but if it fails to resolve the dispute, it will refer the retrenchment case to the Labour Court.

There are 2 distinct stages to the process of dispute resolution at the CCMA, namely the conciliation stage and the arbitration stage.

During the conciliation stage, the Commissioner facilitates a negotiation between the parties to try to resolve the dispute, it is often colloquially referred to by the commissioner as a process where “both parties compromise and neither leave very unhappy or very happy”.  The Commissioner does not have the power to decide which party wins the case and only make suggestions and assists the parties to arrive at a settlement. The conciliation stage is a “without prejudice” process, cannot be recorded, and what is said in the conciliation cannot be used as evidence should the matter proceed to arbitration. Attorneys may not represent parties at the conciliation. The parties may, however, be represented by a trade union official or an official from an employers' organisation. Should the parties be unable to resolve the dispute at conciliation, the Commissioner issues a "certificate of no-outcome or non-resolution". The dispute may then be referred to Arbitration.

There are also “in-between” processes at the CCMA, called “con/arbs”. This is when the matter is set down to proceed as conciliation first, and should it not be resolved, immediately into arbitration. Certain disputes can be “objected’ to, and the processes are then split, to be heard at separate sittings, should the matter remain unresolved after conciliation. However, if the dispute revolves around unfair dismissal of an employee on probation, such as a section 73(A), where there is an allegation of statutory monies owed, or a section 69(5), where there is a dispute involving a compliance order, the process cannot be “objected to” and the Commissioner will conduct the Conciliation and the Arbitration on the same day. Should the matter remain unresolved, a referral must be made for arbitration within 90 days from when the "certificate of no-outcome or non-resolution" was issued and the CCMA must give both parties at least 21 days' notice, in writing, of an arbitration hearing, unless the parties agree to a shorter period.

The procedure at the Arbitration hearing is similar to a trial in a civil court or a formal disciplinary inquiry. Under certain circumstances, parties may be represented by legal practitioners and there are distinct phases of the proceedings, namely, parties give short opening statements explaining their case, parties give evidence and calls their witnesses to testify, parties may cross-examine the other party and their witnesses and after all the evidence has been given, and parties make a short closing statement. The Commissioner then makes his ruling. This ruling is however not handed down on the day and they have up to 14 days to make his decision. Should an employer or employee be unsatisfied with the Commissioner's decision, they have the right to take the ruling on review by the Labour Court. This means that a party aggrieved by a decision made by a commissioner in an award may apply to the Labour Court to have it set aside based on an alleged defect with that award. 

The party who alleges that there is a defect must file the application with the Labour Court within six weeks of the award being served. A defect means that the Commissioner committed misconduct in relation to their duties as an arbitrator; that the Commissioner committed a gross irregularity in the conduct of the arbitration proceedings; that the Commissioner exceeded their powers; or that the award was improperly obtained. The mere fact that a party is unhappy with an award would not satisfy the test for the matter to be reviewable, as the test for review is based on whether the decision reached by the Commissioner is one that a reasonable decision-maker could not reach. In applying this test, a reviewing Court will not interfere with an award easily but will consider whether the commissioner considered the principal issue before them, whether they evaluated the facts presented at the hearing, and whether they came to a reasonable conclusion. While the CCMA’s core principles include speedy and cost-effective dispute resolution and the rules and regulations of the CCMA were promulgated with this in mind, this is not the case when disputes reach the Labour Court, and while there is nexus between the respective bodies, the manners in which matters are respectively dealt with are distinctly different. Despite this, the cornerstone of both the Labour Court and the CCMA is to ensure that there is workplace fairness and should there not have been, that that the unfairly treated party is remedied.

Contact Invictus for assistance in CCMA referrals or require guidance or clarity on the proceedings of labour litigation. Reach out to our office at 086 173 7263 or email us at admin@invictusgroup.co.za.

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