Legal Advice

What do businesses need to know about the CCMA?

In the modern business landscape, disputes and conflicts between employers and employees are inevitable. The Commission for Conciliation, Mediation and Arbitration (CCMA) is an independent statutory body established by the South African government to promote the principles of social justice and maintain harmonious labour relations. The CCMA deals with disputes between employers and employees.
The CCMA can help companies to solve conflicts with their employees without going to court, by focusing on mediation, negotiation, and alternative dispute resolution (ADR) methods.
Some key things to keep in mind are that:
  • An employer or employee can approach the CCMA for assistance with disputes such as unfair dismissals, wage disputes, and discrimination claims;
  • The CCMA provides free services to both employers and employees; and
  • It is important to follow specific procedures when filing a dispute with the CCMA.
How to –
a. Avoid the CCMA:
  • Comply with the following legislation:
► Labour Relations Act 66 of 1995: Companies should respect employees’ rights envisaged in the Act such as freedom of association, give recognition to trade unions, bargaining councils, and strikes.
► Basic Conditions of Employment Act 75 of 1997 (BCEA): Companies should comply with the minimum wage, working hours, leave days of employees, prohibition of children and forced labour, and termination of employees’ services.
  • Sign the correct employment contracts (such as fixed-term contract). Prepare contracts with the appropriate provisions such as probation with option to extend probation or performance manage or terminate.
  • Follow due process – In the event of a breach of employment contract or company policy or the commencement of any disciplinary action always follow the procedure as set out in law as closely without deviation.
  • Consider and apply sections 8 and 9 of Schedule 8 (Code of Good Practice: Dismissals) of the Labour Relations Act. This is a guideline for the handling of, and fair dismissal in cases of, poor work performance.
► Treat employees with respect and act with fairness.
► Three grounds on which a termination of employment might be legitimate are:
  1. the conduct of the employee;
  2. the capacity of the employee; and
  3. the operational requirements of the employer’s business.
  • Record / document all key discussions and disciplinary measures.
b. Prepare for CCMA hearings:
  • Proceedings are triggered once a complaint is filed by either party. The CCMA will thereafter send out a notice to both parties advising them to attend either conciliation, or arbitration, and giving parties time to prepare for the CCMA process. A mediator is appointed to attempt to facilitate an out-of-court settlement.
  • An employer may be represented in the proceedings by a director, an employee or an employer organisation registered with the Department of Employment and Labour.  An employer is generally not allowed to be represented by a legal practitioner during conciliation phases.  Therefore, it is important to obtain adequate information when preparing for the hearings.
  • In making decisions, the CCMA considers two elements:
► Substantive fairness: the employer needs to prove that there is a valid and fair reason for the sanction imposed.
The CCMA considers if there was a rule in the workplace, if the employee was aware of such a rule, if the rule was reasonable, if the employee broke the rule, and applied progressive discipline measures.
► Procedural fairness: the employer needs to show that a proper procedure for disciplinary hearing was followed. An employer cannot dismiss an employee under any circumstances, even with a valid reason, without holding a disciplinary hearing.
Therefore, an employer should prepare and provide evidence to satisfy substantive and procedural fairness. Accepted evidence can be in the form of emails, social media messages, photographs, videos, audio, or any other correspondence legally obtained. 
c. Onus: 
  • Section 10 of the Labour Relations Act imposes a burden of proof on a party who alleges that infringement of a right or unfair labour practice must prove the facts of the conduct. This applies to any unfair labour practices.
  • However, in dismissal cases, there is a reversal burden of proof. The employer must prove the existence of the dismissal and prove that the dismissal was fair.
d. CCMA decisions:
  • However, it is crucial for businesses to understand that CCMA decisions, whether reached through conciliation, mediation, or arbitration, the decisions are legally binding. Employers must comply with the decisions and awards made by the CCMA, failing which legal consequences may follow.
  • Furthermore, the decision made cannot be appealed on the basis that the decision was wrong. The decision can be taken on review and for the review to succeed.
  • Where the matter cannot be settled, the matter will be referred for immediate arbitration.
e. Avoiding disputes:
  • It is important for businesses to develop a clear and focused code of conduct to ensure all employees know what is expected of them.
  • Businesses can avoid disputes by encouraging employee engagement through recognising trade unions for collective bargaining purposes and regular consultations with registered trade unions. This is important for the employer to address problems regularly before they escalate.
f. Dealing with disputes
  • The Labour Relations Act recognises different types of disputes that may arise from labour relations which may be referred to the CCMA. These include:
► disputes about collective agreements;
► disputes about whether a service is an essential service;
► disputes about workplace forums; and
► disputes about organisational rights.
  • When dealing with disputes, the Labour Relations Act compels employers to apply disciplinary measures progressively, such as consultations and warnings.
  • Furthermore, employers are compelled to recognise and consult with trade unions and participate in collective bargaining.
  • In the process of dealing with disputes, employees have the right to be heard and to be assisted by a trade union representative.
g. Probations
  • The Schedule 8 of the Code of Good Conduct regulates probation periods of employees. The Act recognises the purpose for probation period is to give the employer an opportunity to evaluate the employee’s performance before appointing permanent employment.
  • The Code of Good Conduct provides performance standards that applies during probation. The employer is required to provide an employee with reasonable evaluation, instruction, training, guidance, or counselling in order to allow the employee to render a satisfactory service.
  • An employer can only dismiss an employee for unsatisfactory performance provided that the employer applied all these performance standards and the employee continued to render poor work performance.
It is always recommended to have a skilled labour lawyer or HR consultant to assist with the CCMA process.
Overall, understanding the CCMA and how it works, can help you avoid costly litigation, promote better relationships with employees, and maintain a positive work environment.