CCMA Myths and Misconceptions: What Employers and Employees Should Know

CCMA in South Africa: Myths and Misconceptions - DMF Attorneys

The Commission for Conciliation, Mediation and Arbitration, better known as the CCMA, plays a central role in resolving workplace disputes in South Africa.
It conciliates workplace disputes and arbitrates certain disputes that remain unresolved after conciliation. However, misconceptions about what the CCMA does, who can approach it and how its processes work can lead both employers and employees to make costly mistakes.

Here are some of the most common CCMA myths.

Myth 1: Only employees can approach the CCMA

Not necessarily.
Government guidance expressly states that an employee or employer may approach the CCMA in relation to appropriate workplace disputes. Trade unions and employers’ organisations may also initiate referrals in appropriate circumstances.
The CCMA does not, however, have jurisdiction over every workplace disagreement.
For example, a dispute may need to be dealt with by a bargaining or statutory council where one has jurisdiction, while some disputes are dealt with through other forums or procedures.

Myth 2: You can take any employment problem to the CCMA

No.
The CCMA deals with disputes falling within its statutory jurisdiction.
These include many disputes concerning dismissal and unfair labour practices, as well as various other matters provided for by labour legislation.
But the existence of a disagreement between two people does not automatically give the CCMA jurisdiction.
Government guidance specifically identifies circumstances where disputes cannot simply be referred to the CCMA, including where an applicable bargaining or statutory council exists or where a private dispute-resolution agreement governs the matter.
Identifying the correct forum is therefore an important first step.

Myth 3: There is plenty of time to refer an unfair dismissal

No. The time limit is short.
An unfair dismissal dispute generally needs to be referred within 30 days of the date of dismissal.
An unfair labour practice dispute generally has a 90-day referral period.
If a referral is made late, the referring party will ordinarily need to apply for condonation, asking for the late referral to be accepted. Condonation is not automatic.
Employees should therefore avoid waiting until the last minute before obtaining advice about a possible dispute.

Myth 4: Going to the CCMA means there will immediately be a trial

No.
Many CCMA matters begin with conciliation.
Conciliation is intended to give the parties an opportunity to resolve their dispute. The CCMA Rules also allow the Commission or a commissioner to attempt to resolve a dispute before the formal conciliation through a pre-conciliation process.
Conciliation proceedings are private, confidential and generally conducted on a without-prejudice basis.
If the dispute cannot be resolved, a certificate of non-resolution may be issued and, depending on the type of dispute, the matter may proceed to arbitration or another appropriate forum.

Myth 5: Conciliation and arbitration are the same thing

No. They serve different purposes.
During conciliation, the commissioner assists the parties in attempting to resolve their dispute.
Arbitration is different. The commissioner hears the matter and ultimately makes a decision.
This distinction is important because the way a party prepares for conciliation can be very different from the evidence and preparation required for arbitration.
Where arbitration is required after unsuccessful conciliation, the CCMA Rules generally provide a 90-day period for requesting arbitration, calculated from the applicable point following conciliation.

Myth 6: You always have the right to bring an attorney to the CCMA

No.
The rules on representation depend on the type and stage of the proceedings.
Legal representation is permitted in various CCMA proceedings, but it is restricted in certain arbitrations involving dismissal for conduct or capacity.
In those matters, legal representation may nevertheless be permitted where the parties consent or where the commissioner allows it after considering factors such as the nature of the legal questions, complexity of the dispute, public interest and the parties’ comparative ability to deal with the arbitration.
So it is incorrect to say either that “lawyers aren’t allowed at the CCMA” or that “you can always have a lawyer represent you.”
The correct answer depends on the proceedings and circumstances.

Myth 7: The CCMA always sides with employees

No.
The CCMA’s role is not to represent the employee or the employer.
It is an independent statutory dispute-resolution body established under the Labour Relations Act. Its mandate includes conciliation and arbitration of workplace disputes falling within its jurisdiction.
An employer therefore should not assume that a CCMA referral automatically means the employee will succeed.
Likewise, an employee should not assume that referring a dispute guarantees a favourable outcome.
The facts, evidence, applicable law and fairness of the circumstances matter.

Myth 8: If an employer misses conciliation, the case disappears

No.
Failure by a party to attend conciliation does not automatically bring the matter to an end.
Under the CCMA Rules, if a party does not attend, the commissioner may continue with the conciliation, adjourn it within the applicable period or conclude the conciliation and issue a certificate.
Ignoring CCMA correspondence is therefore a poor strategy.
Employers and employees should carefully check notices received from the CCMA and take appropriate action within the required time periods.

Preparing for a CCMA matter

Whether you are an employer or employee, preparation can make a significant difference.
Keep relevant documents such as employment contracts, correspondence, disciplinary records, warnings, policies, payslips and other evidence relating to the dispute.
It is also useful to establish:

what the dispute is actually about;
when the relevant event occurred;
whether the referral is within the applicable time limit;
which forum has jurisdiction;
what outcome is being sought; and
what evidence supports the case.

Obtaining advice early can also help identify procedural or jurisdictional issues before a matter progresses further.

Need assistance with a CCMA dispute?

DMF Attorneys assists employers and employees with labour disputes and CCMA matters, including advice on disciplinary issues, dismissals and preparation for dispute-resolution proceedings.

Contact DMF Attorneys for advice regarding a workplace dispute or CCMA matter.