You and the CCMA -
Has the dispute been properly referred?
When the dismissed employee refers a matter to the CCMA for conciliation - for example a dispute regarding the fairness of a dismissal - there are certain forms that the employee must complete.
The first one is the form LRA 7.11.
A requirement is that the employee must place the employer in possession of a copy of the completed form.
Employers must not merely assume that the form has been properly completed – if errors have been made by the employee in filling in the form, those errors might render the referral to be defective, the result of which may be that the CCMA do not have the jurisdiction (or authority) to proceed with the matter because it has been improperly referred, or as they say “the referral is defective.”
Employers must check section 3 on the form to ensure that the nature of the dispute has been correctly stated.
The employer should also check what procedure the particular dispute should follow. Disputes regarding dismissals for misconduct, incapacity, or operational requirements conciliated and arbitrated by the CCMA.
The same applies to disputes where the employee states he does not know the reason for the dismissal, or if it is an unfair labour practice dispute or a dispute regarding the right of expectation or a constructive dismissal dispute.
Disputes regarding operational requirements dismissals are not arbitrated by the CCMA, but are conciliated and then go direct to the Labour Court if no settlement is reached at conciliation.
However, in cases where only one employee is retrenched, the employee can elect to have his dispute arbitrated by the CCMA, or to refer it to the Labour Court.
Although it may seem to be stating the obvious, employers should check that the dismissed employee is or was in fact an employee as defined by the Labour Relations Act. It is possible that the employer may well find a loophole there - whereby the dismissed person was not actually an employee of the company as defined by the act - and the referral would therefore not apply.
The employer must also ensure that the CCMA is the correct dispute resolution body - in other words, is there perhaps a Bargaining Council that has jurisdiction?
Remember also that generally the employee has 30 days from the date of dismissal in which to register his referral with the CCMA or bargaining Council.
Check that he has registered the referral within that time limit - if he has not, and if he has not also submitted an application for Condonation of Late Referral with his late referral, then his referral is defective.
Unfair labour practice disputes must be referred generally within 90 days of the act or omission, or within 90 days of the date on which the employee became aware of it.
Check also on the form LRA 7.11 what outcome the employee is looking for.
He might state that he requires reinstatement; he might state that he requires compensation, and sometimes they even state what they consider to be a reasonable amount of money for compensation - such as two years salary or something equally ridiculous!
This gives you an idea of which way the employee is thinking.
Another important issue is that of the “con/arb” process.
Check section 11 of the form LRA 7.11 to see if the employee has objected to this process. If he has not signed the section objecting to it, then you must be careful to make absolutely certain that you check what is stated on the notice that you will receive from the CCMA setting down the date time and place for the conciliation hearing.
If it states that the process is to be “Con/Arb”, you must immediately write a letter to the CCMA, giving them the case number, date and time of the set- down, and simply state in the letter that you object to the “Con/Arb” process.
Send a copy of that letter to the other party.
You do not have to provide reasons.
If the dismissal occurred while the employee was on probation, “con/arb” is mandatory.
Check also on the form that the employee has stipulated the correct date of dismissal, and that he has cited the company name and contact particulars correctly.