Can my Employer Take Me to the CCMA?

Disputes between employees and their bosses are common occurrences regardless of your field of work. When things get serious, dismissal is the usual remedy used by those in charge while employees normally rely on institutes like the CCMA for solutions. That might explain why so many people believe that the CCMA is only a tool for employees, but is this really the case? Can your boss be the one who goes to the CCMA and when will they have a case against you? Can my Employer Take Me to the CCMA?

Yes, employers are able to approach the CCMA and there are times where the CCMA will side with them over the employee.

The CCMA is an independent organization created to protect the rights of both employers and employees, as such if any person, regardless of their position, feels as though they have been unfairly treated in the workplace, they are entitled to seek out CCMA mediation. 

Either party may approach the CCMA if there is a dispute over –

• Dismissal
• Wages
• Work Conditions
• Workplace Changes
• Discrimination

The CCMA generally acts as an unbiased third-party during disputes to help ensure that a fair and reasonable agreement is formed. Employers can thus use the CCMA as a sort of witness to make sure that no unfair treatment has taken place.

Simply put, while it isn’t common for employers to make the first move, some, more cautious bosses, may take the initiative and call them in so that no person may later claim that they have been acting unfairly.

When can my Employer Take Me to the CCMA?

As mentioned, the CCMA can be approached almost anytime that there is a workplace dispute. This doesn’t necessarily have to end in dismissal and perhaps a compromise can be reached between the two groups, but the list of valid reasons for an employer to seek out mediation is long and includes things like dishonesty and poor work performance.

The only times that the CCMA cannot get involved is when –

• There is an independent contractor
• The case does not involve issues found in the EEA or the BCEA
• An arbitration council already exists for the relevant sector
• A private agreement has already been made regarding arbitration

The most common reason for employers to seek out the services of the CCMA is that they intend to dismiss employees and want to ensure that it is done fairly and correctly.

Many employers attempt to fire their workers without arbitration and are surprised to learn that there are specific procedures to follow. These instances can often result in the CCMA or courts siding with the dismissed employee. Over time, employers get wise to this however and begin to involve the CCMA beforehand so that they can not be accused of unfair dismissal.

How do I Appeal A Case from the CCMA?

Obviously, few arbitrations end with both parties being completely satisfied and at least one group usually feel as though they have been wronged by the system. In these scenarios, individuals may wonder how they can appeal decisions made by the CCMA with regard to their case.

The CCMA rulings are themselves final and cannot be appealed, however, arbiters can be taken to the Labour Court on accusations of misconduct. If the subsequent review of the case by the Labour Court agrees with the aggrieved party, the verdict decided during the first CCMA case may be overturned.

Many cases have occurred in which the arbiter was accused of ignoring evidence, showing bias, or incorrectly categorizing an offence. Such allegations have oftentimes resulted in the case being overturned.

Who Represents Me at the CCMA?

The first CCMA meeting is usually conducted only with the employer, the employee, and the CCMA commissioner, although either party may choose to include trade union or company representatives. Usually, legal representation is not allowed for the first meeting.

If both parties consent to legal representation or if the arbiter decides that it is necessary for the case, you may then call a legal professional to represent you. It is, however, worthwhile to consult with a legal representative as soon as possible because even if they cannot represent you in person they will be able to prepare you for the CCMA process.

Can my Employer go to the CCMA without my Consent and do I have to go?

Yes, your employer may go to the CCMA without receiving your consent, but they do have to send you a copy of their CCMA referral form. The CCMA will also inform both parties of the time and location of the first meeting.

It is very important that you attend the CCMA meeting as it will continue even if you do not show up. If only one side appears at the meeting, the CCMA official will only hear one side of the story and it is likely that they will rule in favor of the present individual. You can ask that a meeting is rescheduled but you will need to have a very good reason for not showing up.

Advice for CCMA Proceedings

The best possible move you can make when confronted with a CCMA meeting is to seek the help of a legal expert the moment you receive your notification. 

Sadly, an attorney can be a costly addition to your defense but don’t panic, there are many other steps you can take to make sure you’re in the best possible position going into the meeting.

• Written documents and contracts – It’s always a good idea to create and keep a copy of a formal, written contract with your employer when you begin working. This ensures that if you are brought to the CCMA on unfair charges, you will be able to refer back to the contract. It’s often not too helpful to explain any verbal agreements you made as the other party can simply argue that they remember the conversation differently.
• Worker’s Unions – Various unions exist that specialize in helping workers make their claim with the CCMA, you should be able to enlist the help of one of these groups fairly easily.
• Be open to settlements – In most cases, the CCMA agent’s job is to reach a mutually agreeable settlement. If you go into the meeting assuming that you will receive every benefit while the employer receives none you may be less likely to accept offers made to reconcile the situation. It’s important then, to be reasonable and expect to make some concessions during the process.
• Create a dispute folder – As mentioned, simply telling the CCMA that an event took place is not very effective as it can be easily disputed by the other party. It’s more productive to keep and make written copies of all disputes between yourself and your employer as well as all information relevant to the case. Once this is neatly compiled you should make a copy available to the arbiter and your employer. This folder may also include any physical evidence which supports your claims.
• Streamline the case – If possible, you should try and sit down with your employer before the initial CCMA case and agree on the exact issue you wish to bring up during the case. This will prevent lengthy sessions of finger-pointing during the meeting.
• Bring witnesses – If the CCMA allows you to, you should bring relevant witnesses that can back up your case. This adds credibility to your arguments.

In Conclusion – Can your Employer take you to the CCMA and What Happens if they do?

The CCMA has been established to protect the rights of both employees and employers, as such, an employer can take their employee to the CCMA if they have a valid complaint regarding a dispute at work.

There are many reasons for such disputes but commonly, employers will seek out the arbitration of the CCMA to ensure that the employee cannot later claim that a dispute was handled in an unfair or discriminatory manner.

There are times when the CCMA cannot be involved in a dispute, such as when a different arbiter has been agreed to beforehand or when a different arbitration council already exists for that type of dispute.

If your employer takes you to the CCMA it is worthwhile to seek out the aid of a legal professional or a worker’s union. If this is impossible, the next best steps are as follows –

• Keep written records and provide them to all parties involved during the meeting
• Be open to reconciliation and mutually beneficial settlements
• Bring all relevant documentation and evidence to the meeting
• Discuss the case with your employer beforehand and agree about what you wish to settle during the CCMA arbitration
• Bring witnesses who support your position to the CCMA meeting

You may be represented at the CCMA by certain members of a relevant union but the initial meeting is normally meant to be a simple, informal discussion where legal representation is usually not permitted.

Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although in many instances, our posts cite the constitution, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.

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