Here’s a practical breakdown of how the CCMA works in South Africa, including key processes like Condonation, In Limine proceedings, Conciliation, Arbitration, Con-Arb, and others.
1. Condonation
Condonation refers to a request made when a case is referred to the CCMA after the legal time limit has passed. For example:
- Unfair dismissal cases must be referred within 30 days of dismissal.
- Unfair labour practice cases must be referred within 90 days.
If you miss the deadline, you need to apply for condonation, explaining why the case is late and why the CCMA should still consider it. The commissioner will evaluate factors like the reason for the delay and whether you have a valid case.
More details here: Steps for Referring Disputes at the CCMA.
2. In Limine Proceedings
In Limine proceedings deal with preliminary points before the main case starts. For example, an employer might argue that the CCMA doesn’t have jurisdiction over the case. These issues must be resolved before conciliation or arbitration proceeds.
3. Conciliation
Conciliation is the first step in the CCMA process. It’s an informal meeting where the employee and employer try to resolve the dispute with the help of a commissioner. The goal is to reach an agreement without going to arbitration. Conciliation must happen within 30 days of referring the case.
- If the dispute is resolved, a settlement agreement is signed, and the case is closed.
- If conciliation fails, the commissioner issues a certificate of non-resolution, and the case may move to arbitration.
Learn more about conciliation here:
CCMA Conciliation Process.
4. Arbitration
If conciliation fails, the next step is arbitration. During arbitration, a commissioner listens to both sides’ arguments, considers evidence, and then makes a binding decision. This process is more formal and similar to a court hearing.
- The employee can request arbitration within 90 days of the conciliation failure.
- Witnesses may be called, and both parties can present evidence and cross-examine each other.
More about arbitration here:
CCMA Arbitration Process.
5. Con-Arb
Con-Arb is a combination of conciliation and arbitration in a single session. If the conciliation fails, arbitration begins immediately on the same day. This process is common in unfair dismissal cases.
- Con-Arb speeds up the dispute resolution process by avoiding a separate arbitration hearing.
- The employee or employer can object to Con-Arb if they don’t want the processes combined, but this must be done in writing before the conciliation.
More about Con-Arb: CCMA Con-Arb Process.
6. Rescission or Variation
If a party believes that an arbitration award was made in error or they were absent due to valid reasons, they can apply for rescission (to cancel) or variation (to amend). The application must be made within 14 days of becoming aware of the award.
- Reasons for rescission may include errors made by the commissioner or the award being granted in their absence.
7. Inquiry by Arbitrator
The Inquiry by Arbitrator process allows an employer to request the CCMA to conduct an internal disciplinary hearing on their behalf. Instead of the employer running the hearing, a CCMA arbitrator does it. This is especially useful for complex cases.
8. Facilitations in Terms of Section 189(A) of the Labour Relations Act
When an employer intends to retrench large numbers of employees (usually 50 or more), facilitation by the CCMA is required. The facilitation process is designed to help the employer and the union or employees agree on the retrenchment process and to avoid disputes.
9. Review of Arbitration Award or Ruling
If a party disagrees with an arbitration award made by the CCMA, they can apply to the Labour Court to have the award reviewed. This is not an appeal, but a request to review the decision for procedural fairness or misconduct by the commissioner. The application must be made within 6 weeks of the award being issued.
More details on this process: CCMA Process Explained.