When Can I go to the CCMA?

Interactions between workers and employers can often be difficult and confusing. Many disagreements may arise over issues such as pay, work hours and treatment. In some scenarios, these disagreements can become quite heated and may leave one or both parties feeling wronged or cheated in some way. You may wonder, When can I go to the CCMA?

Disputes and disagreements can be referred to the CCMA when a certain party (employer or employee) feels as though they have been subjected to unfair treatment or discrimination, as defined by section 8 of the LRA.

Do you sometimes feel like this? Are these disputes reason enough to go to the CCMA? And, if so, how does the process even work? The CCMA will then oversee and help arbitrate the disagreement. The most common issues that may be referred to the CCMA are –

• Dismissal – The Labour Relations Act of 1995 protects workers from being fired unfairly. Employees who believe that they have been unfairly dismissed may seek arbitration.
• Wages or working conditions – Disputes regarding payment and working conditions are common issues as each party may argue over whether these factors are either unsatisfactory or sufficient. The CCMA can help find a compromise.
• Workplace changes – Sudden differences or shifts in the working environment may be seen as unfair or unsafe and can be formally verified.
• Discrimination – If an individual feels as though they have been discriminated against for reasons such as, but not limited to, race, sexual orientation, belief, political opinion, gender, and pregnancy. They may seek adjudication from the CCMA.

You may not refer your case to the CCMA if it falls within the following categories –

• Independent contractors are involved.
• The case does not relate to issues identified in the Labour Relations Act or Employment Equity Act(EEA) or the Basic Conditions of Unemployment Act(BCEA).
• A bargaining council exists for the sector in question.
• A private agreement for settling disputes has already been established.

If you believe that you have a case with the CCMA, make sure you watch the time, you only have a certain timeframe available after the dispute occurs, in which you will be able to open a case.

You do not need the consent of the other party to appeal to the CCMA, this process may be initiated by either the employer or the employee independently.

What is the CCMA and How does the Process Work?

The Commission for Conciliation, Mediation and Arbitration(CCMA) is an independent organisation that was established to protect the rights of both employers and employees from unfair labour practices and discrimination.

The CCMA’s chief goal is to reach some form of peaceful reconciliation or deal between the two parties.

They have the authority to certify the dispute as formally resolved if they believe that this has been achieved, however, if no agreement is reached, or if the case involves certain, more intense elements, such as extreme discriminatory behaviour, they may choose to refer the case to the Labour court.

An in-depth look at the appeal process can be found here, but the general procedure that will most likely take place is as follows –

• Formal legal paperwork will be issued and must be completed by the aggrieved party.
• A copy of the paperwork must be sent to the other party to inform them of the case, you must also provide proof that you have, in fact, sent this information.
• The CCMA will let both parties know when the first meeting will take place. The CCMA will attempt to reach a compromise. No legal representation is allowed at this hearing.
• If no compromise is reached the case will either be set up for direct arbitration or will be referred to the Labour Court.
• If arbitration does not succeed, the case will be referred to the Labour Court.

Written contracts are extremely helpful when determining wrongdoing in cases. If the parties have formed and agreed to a written contract it will help to determine whether or not the individuals involved were aware of certain conditions beforehand and if the contract was truly violated. Contracts agreed to orally are less reliable as each party may remember the original wording differently.

What is Unfair Dismissal?

Not all dismissals are unfair. If, for example, an employee does not have the necessary abilities required to accomplish the task, they may be lawfully dismissed.

Perhaps, the employee has broken an agreed-upon rule that is viewed as reasonable and lawful, or maybe, the employee simply refuses to do agreed-upon work that does not violate their contract or any standing laws. All of these are valid reasons for lawful dismissal.

There are, however, many forms of unfair dismissal that may be appealed to the CCMA, these are found in section 187 of the LRA and include –

• Dismissal because of participation in a strike or protest – Employees have a right to participate in, or show support of, lawful strikes and protests. They may not be fired for their support, either direct or implied, of such a protest or strike.
• Compulsion – Dismissal can not be used as a threat to demand the acceptance of a matter or a contract.
• Lack of evidence – If an employee is dismissed due to a lack of performance requirements or due to an issue with conduct, the employer must be able to provide reasonable evidence of these deficiencies.

What are Unfair Labour Practices?

The definition of ‘unfair treatment’ is worryingly vague. Labour law practitioner, Nicolene Erasmus details the inherent difficulties when determining if a labour practice is unfair or just seems unfair in the eyes of the employee.

The LRA defines unfair labour practices simply as, “any unfair act or omission that arises between an employer and an employee involving –”

• Unfair conduct relating to promotion, demotion or probation
• Unfair suspension
• Refusal or failure to reinstate an employee as outlined in a contract or formal agreement
• Occupational Detriment

As you can imagine, these definitions still do not address the main question, what do we consider unfair?

This is where independent arbitration comes in. There will almost always be some disagreement between employers and employees over whether or not an action is ‘fair’. The truth of the matter is normally decided by the CCMA, but objections to this ruling can be challenged by taking the arbiter to the Labour Courts for misconduct.

In short, if you believe you have been treated unfairly in the workplace, it may be wise to approach your employee/employer with your concerns. If this treatment continues, the CCMA exists to help determine whether or not your concern is valid. It’s also prudent to always know your rights. You will not be able to determine if your work, workplace or treatment is unfair if you do not understand your individual liberties and rights.

Some frequently asked questions include…

Can you be Fired for Lying/Dishonesty?

Yes, dishonesty is grounds for legal dismissal. An employee is often expected to work within the bounds of a certain, agreed-upon (or at least a reasonable) code of conduct. In some circumstances, dishonesty may be considered an extreme enough breach of conduct that dismissal is a reasonable response.

Can you be Fired for Poor/Unsatisfactory Performance?

Yes, poor performance or ability can be ground for dismissal in some scenarios. There are many legal protections against such a dismissal, for example, the employee must be made aware of their deficiencies, they must be given time and opportunities to improve. Their expected performance must also exist within acceptable or reasonable boundaries. If however these, and other conditions have been met and performance is still lacking, this may be grounds for legal termination.

Can you be Fired for Late arrivals and Absent days?

Yes, but only within reasonable limits. If an employee is constantly late for large enough periods of time. If they are absent for multiple days without adequate reasoning or if they take extended, unreasonably long breaks they may be at risk of legal dismissal. There are many other possible grounds for such a dismissal including things like leaving early and taking too long to complete tasks.

Can you be Fired for Drinking while at Work?

Yes, intoxication does fall into the category of misconduct and is a dismissable offence. It is however a good idea to have a company policy or written contract that specifies that this act would be unacceptable so that the employee in question cannot claim ignorance.

Keep in mind, dismissal or given warnings regarding misconduct must be given in a language understood by the employee. The employee must also affirm that they have clearly understood the issue. It is also in your best interests to keep written records and accounts of all these interactions including warnings and notices of dismissal.

Can I Fire an Employee During the Covid-19 Pandemic and/or Lockdown?

Yes, although there have been some restrictions imposed on certain business sectors regarding their retrenchment policies, the average South African is still at liberty to dismiss an employee during the pandemic and lockdowns. These dismissals must still follow the procedures and limitations noted in the LRA.

The reasons for dismissal can normally include redundancy and retrenchment, but be aware that firing an employee while claiming these as the reasons can be retroactively viewed as unfair dismissal if new employees are hired to fill these roles.

Can I fire an Employee for not Wearing a Mask During Covid 19?

Yes, if you have a clear, agreed-upon contract that includes a health and safety policy that specifies that masks are mandatory at work, your employee is obliged to follow this rule. If they still refuse to wear a mask or face covering after clear warnings, this may be grounds for legal dismissal.

In Conclusion – When can I go to the CCMA and what are Unfair Dismissals and Labour Practices?

The CCMA is an independent arbitration organisation that exists to create agreements and reconciliation between aggrieved parties.

If an employee or an employee believes that they have been the victim of unfair treatment or discrimination, they may appeal to the CCMA for oversight and mediation.  If this does not succeed, either party may take the arbiter to a Labour Court on the grounds of misconduct, or, if the case involves serious allegations of abuse of discrimination, the CCMA may forward the case to the Labour Court themselves. 

There are multiple forms of unlawful dismissal and unfair labour practices. Often the issue will be viewed as fair by one party and unfair by the other. In these cases, it is wise to approach the CCMA and ask them to act as an unbiased third party to help determine if unlawful behaviour or misconduct has taken place.

Any legal action including appeals to the CCMA must be done via the relevant legal channels and must be made known to both parties. Formal paperwork will be provided by the CCMA and must be completed by the aggrieved party. This paperwork must be submitted and a copy must be made available to the other party.

Both parties must have notice of, and an opportunity to attend, the CCMA tribunal and make their case. Legal representation is not allowed at the first meeting of the two parties with the CCMA but is acceptable (and sensible) at subsequent meetings and appeals to the Labour Court.

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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