CCMA: Daunting or Dauntless?

The demise of the Industrial Court and ascendance of the Commission for Conciliation, Mediation and Arbitration (CCMA) signalled a shift from a highly adversarial model of labour relations to one aimed at promoting greater co-operation, industrial peace and social justice. The old adversarial system being characterised by significant delays in the resolution of disputes and huge costs for the opposing parties.

The CCMA is currently dealing with over 100 000 cases every year, in addition to the thousands of cases handled by the other labour law dispute-resolution bodies such as the Labour Court, Labour Appeal Court, bargaining councils and private arbitration forums.

When would I use the CCMA?
Any employer, employee or trade union could approach the CCMA when faced with one of the following matters:

  • Unfair dismissals;
  • Unfair labour practices;
  • Unfair discrimination;
  • Organisational rights;
  • Mutual interest issues;
  • Collective agreements.

The question to be asked is whether a visit to the CCMA should be daunting? With the proper preparation and representation, the answer is a definite no!

The following advice will assist you with the first step, preparation:

  1. Be open to settlement through conciliation

This does not necessarily mean re-instatement or financial compensation. Talking to and engaging with your legal representative beforehand will allow you to fully understand your options and make an informed decision as to whether giving a mandate for a “nuisance value” settlement will be in your business’s best interests.

  1. Bring all of the relevant documentation

In order to properly argue your case at the CCMA you are going to need to provide evidence that you have followed the correct procedures and established a sound basis for the decision to dismiss. The minutes of the disciplinary hearing, together with the evidence which was taken into consideration in reaching the ultimate decision will be vital.

  1. Consider holding a pre-arbitration meeting

This step should be done to streamline proceedings. It will determine facts in dispute and common cause issues. The exchange of documents and other materials can then be done in advance to avoid delays at the CCMA.

  1. Bring appropriate witnesses

Appropriate witnesses should be present at the CCMA arbitration but avoid bringing unnecessary witnesses which will only delay the process.

  1. Ensure appropriate representation

In arbitration proceedings, a party to the dispute may appear in person or be represented only by a legal practitioner, a director or employee of the party, or
any member of that party’s registered trade union or registered employers’ organisation. Choosing to use someone who does not have the right litigation experience could end up costing you 12 months’ salary as compensation to your dismissed employee.

Since its inception, the CCMA has enjoyed a national settlement rate of over 70%, with many of these settlements not including any form of compensation to the dismissed employee. With such a strong push towards settling matters, it is important that you have someone assisting you who knows how to work the system.

If you feel that your business would benefit from having a specialist CCMA litigator manage your CCMA cases on your behalf, then contact The Labour Counsel.

We offer training on and representation in the CCMA, Bargaining Councils and Labour Courts and avoid the stress and unnecessary time spent by companies in these forums, with exceptional success.

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