FAIR AND UNFAIR DISMISSALS
FAIR AND UNFAIR DISMISSALS - THE NEXT STEPS
As more fully set out in our previous article on dismissals, the referral of a dispute to the Commission for Conciliation Mediation and Arbitration, (“the CCMA”), must be done within a specific time period, either by faxing, hand-delivering, or posting the dispute referral form.
Upon receipt of the referral form, the first hearing to be held, in person or virtually, will usually be conciliation, unless the complainant requests a Con-Arb hearing. The CCMA will allocate a date, time and venue for the hearing and has a duty to inform both parties of same.
Essentially, a Con-Arb hearing is when conciliation and arbitration hearings are held in one sitting, on the same day. If parties are unable to reach a mutually acceptable agreement during conciliation, the dispute will proceed to Arbitration without the need for a referral.
Parties referring a matter to the CCMA should note that legal representatives are only allowed to witness conciliation hearings and cannot be representatives. Should a complainant require representation, same can be obtained via a trade union or employee organisation.
Should the matter be referred to conciliation, and the parties to the dispute cannot reach a mutually acceptable agreement, the commissioner will issue what is known as a certificate of non-resolution. Depending on the nature of the dispute, the CCMA may thereafter refer the matter to arbitration or to the Labour Court.
Should an employee proceed with arbitration, a request for arbitration form must be filled in and served within three months from the date on which the certificate of non-resolution is issued.
Arbitration is a formal process in which both parties can be represented and documentary and oral evidence may be utilized to aid your case. The procedure for arbitration is similar to that of a civil trial and the decision of the Arbitrator is final and binding.
If a party fails to comply with the arbitration award, same can be made an order of the Labour Court.
Should you find yourself in the unfair situation described above, kindly contact our offices for assistance on 011 - 646 8411