FAIR AND UNFAIR DISMISSALS - THE NEXT STEPS

 

As more fully set out in our previous article on dismissals, the referral of a dispute to the Commission for Conciliation Mediation and Arbitration, (“the CCMA”), must be done within a specific time period, either by faxing, hand-delivering, or posting the dispute referral form. 

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Upon receipt of the referral form, the first hearing to be held, in person or virtually, will usually be conciliation, unless the complainant requests a Con-Arb hearing. The CCMA will allocate a date, time and venue for the hearing and has a duty to inform both parties of same. 

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Essentially, a Con-Arb hearing is when conciliation and arbitration hearings are held in one sitting, on the same day. If parties are unable to reach a mutually acceptable agreement during conciliation, the dispute will proceed to Arbitration without the need for a referral. 

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Parties referring a matter to the CCMA should note that legal representatives are only allowed to witness conciliation hearings and cannot be representatives. Should a complainant require representation, same can be obtained via a trade union or employee organisation. 

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Should the matter be referred to conciliation, and the parties to the dispute cannot reach a mutually acceptable agreement, the commissioner will issue what is known as a certificate of non-resolution. Depending on the nature of the dispute, the CCMA may thereafter refer the matter to arbitration or to the Labour Court.

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Should an employee proceed with arbitration, a request for arbitration form must be filled in and served within three months from the date on which the certificate of non-resolution is issued.

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Arbitration is a formal process in which both parties can be represented and documentary and oral evidence may be utilized to aid your case. The procedure for arbitration is similar to that of a civil trial and the decision of the Arbitrator is final and binding.

 

If a party fails to comply with the arbitration award, same can be made an order of the Labour Court.

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Should you find yourself in the unfair situation described above, kindly contact our offices for assistance on 011 - 646 8411

Mayuri Maharajh