In many labour disputes employees may be unfamiliar on what the correct procedure is to follow.

In South Africa, the procedure followed to resolve labour disputes is not based on the rules of civil litigation, but rather regulated by the provisions of the Labour Relations Act (also known as the LRA).

The main purpose of the LRA is to provide the necessary guidelines for procedurally fair dispute resolution which ensures that employees are not be subjected to unfair labour practices.

Commission for Conciliation, Mediation and Arbitration - CCMA

One of the most common methods used to resolve labour disputes is conciliation. Unsuccessful conciliation may further be referred for arbitration, the Labour Court and the Labour Appeal Court. Conciliation and arbitration are conducted by the Commission for Conciliation, Mediation and Arbitration (also known as the CCMA).

Unfair Labour Practice Disputes

Cases dealing with promotion, demotion, probation, training, suspension, harassment, intimidation and any other disciplinary action can be regarded as unfair labour practice disputes.

Steps to follow when dealing with unfair labour practice disputes

The procedure to follow in incidents related to the above-mentioned are as follows:

1. Report the matter to the CCMA for conciliation in writing (complete the LRA Form 7.11) within 90 days from date of alleged unfair labour practice incident;
2. In the event of successful conciliation at the CCMA, the matter will be regarded as being settled;
3. In the event of unsuccessful conciliation dealing with probation, the matter will be referred to con-arb (immediate arbitration);
4. In the event of unsuccessful conciliation dealing with occupational detriment the matter will be referred to the Labour Court;
5. In the event of unsuccessful conciliation dealing with any other unfair labour practice incident, the matter will be referred for arbitration at the CCMA.

Dismissals – Fair and Unfair Dismissals

In the event of dismissals, including fair and unfair dismissals, the procedure to follow is as follows:

1. Report the matter to the CCMA for conciliation in writing (complete the LRA Form 7.11) within 30 days from date of alleged unfair labour practice incident;
2. In the event of successful conciliation at the CCMA, the matter will be regarded as being settled;
3. In the event of unsuccessful conciliation, the matter will be referred to arbitration to be set down at the CCMA;
4. The commissioner at the arbitration will make an award accordingly, however this award may referred for review to the Labour Court by any of the parties involved.

Procedure following lodging a dispute at the CCMA

Once a labour dispute has been lodged at the CCMA, the respective parties will be notified of a date for the conciliation and /or arbitration hearing.

Legal representation by an attorney or advocate is limited at the CCMA, however it is not prohibited. This limitation to legal representation is subject to the nature and complexity of the dispute, public interest and consent to legal representation by all the parties involved.

In the event of no legal presentation being approved by the CCMA for conciliation and/or arbitration, the employee may nevertheless seek independent legal advice and legal assistance related to the labour dispute resolution proceedings implemented by the CCMA.

Prior to any proceedings being instituted at the CCMA regarding a labour dispute the employee is entitled to consult with an attorney for legal advice and assistance. It may be in their best interests to seek independent legal advice and assistance prior to or during the labour dispute to ensure they are fully informed of their rights.

Bailey Haynes Inc. – Labour Law and CCMA Cape Town

Our attorneys in Cape Town offer expert legal advice on all labour and employment related issues in line with all recent and relevant developments in terms of the Labour Relations Act as well as all ad hoc legislative measures pertaining to the field, including:

• Employment contracts
• Outsourcing agreements
• Restraint of trade
• Discipline and grievance
• Harassment and victimization
• Discrimination
• Forensic investigations
• Dismissal and incapacity
• Retrenchments and business restructuring
• Employment transfers, sale of business and insolvency
• Industrial action and collective bargaining
• Occupational health and safety
• Employment Equity
• Broad-Based Black Economic Empowerment (B-BBEE)
• CCMA and Labour Court representation
• Manuals and policies
• Labour training
• Workplace audits

Contact us for legal advice.