Understanding The Platforms Available To You To Handle Disputes In The Workplace In South Africa

“The pessimist sees difficulty in every opportunity. The optimist sees the opportunity in every difficulty.” – Winston Churchill

Constructive Dismissal : Constructive dismissal occurs when an employee resigns (with or without a notice) or leaves employment due to unfair pressure, unreasonable instruction or unbearable conduct on the part of the employer. Constructive dismissal is treated the same as other kinds of dismissals, and the employee is entitled to relief in terms of the Labour Relations Act (LRA).

Commission for Conciliation, Mediation and Arbitration (CCMA) : The CCMA is an independent dispute resolution body established in terms of the South African Labour Relations Act, 66 of 1995 (LRA). Here is the CCMA Practice And Procedure Manual – 7th Edition November 2014 and CCMA Rules (17 March 2015 Regulation Gazette Vol. 597 No. 38572) – Employees and employers have access to the CCMA which may be approached (without either party’s consent) to conciliate or arbitrate disputes over such matters as :

  • Discrimination
  • Wages and working conditions
  • Changes in the workplace
  • Dismissal

The following disputes cannot be referred to the CCMA :

  • where independent contractors are involved
  • where the case does not deal with an issue in the Labour Relations Act or Employment Equity Act (EEA). Basic Conditions of Employment Act (BCEA) issues may be linked to unfair dismissal disputes and unfair retrenchment disputes at the CCMA
  • where a bargaining council or statutory council exists for that sector
  • where a private agreement exists for resolving disputes (private arbitration)

Pre-Dismissal Arbitration

“With the amendments of the LRA, section 188A came into effect. This is unlike a normal arbitration at the CCMA where conciliation has failed and a certificate issued. This process is intended to take the place of a disciplinary enquiry and subsequent proceedings, which are heard by the CCMA. An employer may, by agreement with the employee, request the CCMA or council to conduct this arbitration if it relates to the conduct or capacity of that employee.” – CCMA

  1. The employer must inform the employee of the allegations of misconduct or incapacity.
  2. The employer must complete a Request For Enquiry by Arbitrator LRA 7.19 Form. The employee must agree to this.
  3. Proof of payment must be attached to the form. The cost can be obtained from the CCMA offices.
  4. A copy of the form must be given to the employee.
  5. The employer must submit the form to the CCMA by hand delivery, registered mail or by fax.
  6. Within 21 days after receiving the form and proof of payment, the CCMA must give 14 days notice of the hearing date to both parties.
  7. The parties may appear in person or be represented in terms of section 188A (5) by the following :
    1. a co-employee
    2. a director or employee – if the party is a juristic person
    3. any member, office bearer or official of that party’s registered trade union or registered employers’ organization
    4. a legal practitioner, only by agreement between the parties.

The same provisions which apply to arbitration proceedings, apply to pre-dismissal arbitrations. These are set out in section 138 of the LRA. Briefly, they are :

  • The arbitrator may conduct the hearing in a manner considered appropriate to determine the dispute fairly and quickly, taking into account the substantial merits of the dispute which must be dealt with the minimum of legal formalities.
  • The arbitrator has the discretion to determine the appropriate form of the hearing.
  • A party may give evidence, call witnesses, question witnesses of the other party and address concluding arguments to the arbitrator.
  • If the parties agree, the arbitrator may suspend the pre-arbitration hearing and try to resolve the dispute through conciliation.
  • If the employee party fails to attend, the arbitrator may proceed with the pre-dismissal arbitration in his/her absence or may adjourn the proceedings.
  • Any codes of good practice of NEDLAC or published CCMA guidelines must be taken into account, if relevant to the dispute.
  • The arbitrator must furnish an award within 14 days after the hearing that contains reasons for the decision. A copy must be served on each party (the director of the CCMA may extend the 14-day period on good cause shown). The award is final and binding on both parties and it may be made an order of court.

“Only those who are asleep make no mistakes.” – Ingvar Kamprad, Founder of IKEA

Conciliation : Conciliatory meetings are informal and conducted by a commissioner who meets with the parties in dispute to explore ways to settle the dispute by agreement. A party may appear in person or be represented by a director or employee of that party or any member, office bearer or official of that party’s registered trade union or registered employer’s organization.

Arbitration : When conciliation fails, a party may ask the CCMA to resolve the dispute by arbitration. A commissioner gives both parties an opportunity to fully state their cases then makes a decision on the issue in dispute. The decision, called the arbitration award, is legally binding on both parties. The CCMA refers to the term “In limine” and describes it as “a hearing on a specific legal point, which takes place before the actual case referred, can be heard. It is a process that addresses the technical legal points, which are raised prior to getting into the merits of the case, and relates to matters of jurisdiction.”

Con-Arb : Section 191(5A) makes provision for the Con-arb process, which allows for conciliation and arbitration to take place as a continuous process on the same day. The process is compulsory in matters relating to dismissals for any reason relating to probation and any unfair labour practice relating to probation.

Condonation : The CCMA makes it very clear that disputes involving unfair dismissal must be referred to the CCMA within 30 days of the date of the dismissal and that an employee must refer unfair labour practices to the CCMA or council within 90 days of the date of the act or omission, which allegedly constitutes an unfair labour practice. An employee must refer matters involving discrimination to the CCMA or council within six months of the act or ommission that constituted unfair discrimination.

Private Dispute Resolution Agency : A company may appoint a Private Dispute Resolution Agency for assistance and apply to the CCMA for accreditation to resolve and arbitrate disputes that remain unresolved after conciliation. To find out more about accreditation of a private agency, contact the CCMA.

Workplace Forums : Employees may elect a committee to meet with employers on a regular basis to discuss matters affecting the workplace. The aim of a workplace forum would be to deal with non-wage matters via consultation rather than collective bargaining. The focus would be on issues which enhance efficiency and promote the interests of all employees. Consultations may cover anything from the introduction of new technologies to the construction of a production facility. It is a way managers can consult employees on certain matters and include them in decision-making processes.

One or more representatives of a trade union may also apply for the establishment of a workplace forum in any workplace with more than 100 employees (excluding senior managerial employees). An application (LRA form 5.10) may only be made if there is no existing workplace forum established in terms of the Labour Relations Act, 1995 Section 80(2).

Trade Unions : The SA Government’s website defines a trade union as “an organization of workers that promotes and protects the interests of its members in issues such as wages and working conditions, especially through negotiations with employers.”

Trade unions do not have to be registered with the Department of Labour, but unions registered with the Registrar of Labour Relations at the Department of Labour have additional rights.

The Congress of South African Trade Unions (COSATU) was launched in December 1985 and is among the fastest growing trade union movements in the world.

Basic Guide to Strikes, Lockouts and Picketing : “A registered trade union may authorise a picket by its members and supporters for the purposes of peaceful demonstration in any place to which the public has access. It can be held outside the premises or inside with the permission from the employer. If there is a dispute on picketing rules, a registered trade union or the employer can request the CCMA to secure an agreement between the parties. If there is no agreement reached, the CCMA must establish the picketing rules, taking into account the particular circumstances of the workplace or other premises for picketing and any relevant code of good practice.” – Government website.

“When everything seems to be going against you, remember that the airplane takes off against the wind, not with it.” Henry Ford