Unfair Dismissal in South Africa: CCMA Referral Process

In South Africa, if an employee believes they have been unfairly dismissed, they can refer the dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). Here’s a step-by-step guide on how to do this:

Step 1: Understand the Criteria for Unfair Dismissal

Before proceeding, the employee should ensure that their dismissal meets the criteria for unfair dismissal as outlined in the Labour Relations Act (LRA). Common grounds for unfair dismissal include:

Lack of a valid reason for dismissal.
Procedural unfairness (not following the correct dismissal process).
Dismissal based on discrimination or other unfair reasons.

Step 2: Prepare for the Referral

Gather all relevant documentation and evidence related to the dismissal. This may include:

Employment contract.
Dismissal letter.
Any correspondence with the employer regarding the dismissal.
Witness statements or other evidence supporting the claim.

Step 3: Complete the CCMA Referral Form

The employee must complete a CCMA referral form (Form 7.11) to officially refer the dispute. This form requires details such as:

Personal information (name, ID number, contact details).
Employer’s details.
Date of dismissal.
Reasons for believing the dismissal was unfair.
Any attempts made to resolve the issue directly with the employer.

Step 4: Submit the Referral

The completed referral form must be submitted to the CCMA. This can typically be done:

In person at the nearest CCMA office.
Via email.
By post.

Note: The referral must be made within 30 days of the dismissal. If the employee misses this deadline, they may lose the right to refer the dispute unless they can show good cause for the delay.

Step 5: CCMA Acknowledgment

Upon receiving the referral, the CCMA will acknowledge receipt and provide a case number. They will then schedule a conciliation meeting, which is the first step in the dispute resolution process.

Step 6: Conciliation

During the conciliation meeting, both the employee and the employer will have the opportunity to present their sides of the story. A CCMA commissioner will facilitate the discussion, aiming to help both parties reach a mutually acceptable resolution. If a settlement is reached, it will be documented and signed by both parties.

Step 7: Arbitration (if necessary)

If conciliation fails and the dispute is not resolved, the employee can request arbitration. This is a more formal process where the CCMA commissioner will make a binding decision based on the evidence presented. Both parties will have the opportunity to present their case, and the decision will be communicated in writing.

Step 8: Follow Up

After arbitration, if the employee is still unsatisfied with the outcome, they may have the option to appeal the decision in the Labour Court, although this is typically limited to procedural issues rather than a re-evaluation of the facts.

Important Considerations

Legal Representation: Employees can choose to represent themselves or have a representative (such as a union representative or lawyer) assist them during the process.
Time Limits: Adhering to the time limits for referrals and responses is crucial. Delays can jeopardize the case.
Record Keeping: Maintain copies of all documents submitted and received throughout the process for future reference.

It is advisable for employees to seek legal advice or assistance from trade unions during this process to ensure their rights are adequately protected.