The Commission for Conciliation, Mediation and Arbitration, commonly known as the CCMA, is a statutory body which aims to “advance economic development, social justice, labour peace and the democratisation of the workplace”. It is established in terms of Section 112 of the Labour Relations Act, 1995 (Act no. 66 of 1995) [as amended] and is Section 23 of the Constitution of the Republic of South Africa (1996). Its functions, office, and area of jurisdiction are set out further in Chapter VII of the Labour Relations Act. 

Arbitration Process

One of the mandatory functions of the CCMA as set out in Section 115(1) of the Labour Relations Act is to arbitrate certain categories of disputes that remain unresolved after conciliation between the parties.

The conciliation period is 30 days, and where the dispute remains unresolved, a party may, within 90 days of the earliest date of the conciliation being unresolved, refer the dispute for arbitration. Where the timeframe is not strictly observed, the referring party will have to apply for condonation in which the party in question must explain the full details which caused the lateness of the referral. If condonation is granted, the arbitration may be heard.

In disputes involving unfair labour practices and/or the dismissal of an employee under probation, or where there is a dispute related to a compliance order as set out in Section 69 of the Basic Conditions of Employment Act 75 of 1997, or any failure to pay in terms of Section 73A of the Basic Conditions of Employment Act 75 of 1997, the arbitration will take place on the same day as conciliation. This is commonly referred to as “con-arb”.

Ordinarily, legal formalities are kept at a minimum in arbitration processes and the appointed commissioner will make sure that each party is able to represent itself in a fair manner. One at a time, usually starting from the applicant, the commissioner will afford each party to set forth their case and lead evidence in support of that case. The parties will also conduct an examination in chief, and cross-examination, of the witnesses, called.

Is legal representation permitted in arbitration?

In terms of Rule 25, as a general rule, in arbitration proceedings before the CCMA, although a party to the dispute may appear in person or be represented by a legal practitioner, the right to representation by a legal practitioner is restricted if the dispute being arbitrated is about the fairness of a dismissal and a party has alleged that the reason for the dismissal relates to the employee’s conduct, ill health or incapacity to perform, or if the dismissal relates to sections 69(5), 73 or 73A of the Basic Conditions of Employment Act. In these restricted circumstances, a party may apply to the commissioner for legal representation in terms of Rule 25(1)(c). If legal representation is granted, an attorney or candidate attorney may appear with, and speak on behalf of, the applicant in question.

Conclusion

Once the commissioner has heard the respective parties, he or she will consider the evidence and issue an “award” or written outcome, which becomes legally binding on the parties. This award will be communicated to the parties within 14 days of the arbitration. If a party is unhappy with the award, that party may approach the Labour Court for a review. Reviews, however, will only deal with the merits dealt with in arbitration and no new facts may be raised, so it is cautious to ensure that all topics relating to the dispute are dealt with properly in the arbitration. 

Yasmina Griesel, Candidate Attorney, SchoemanLaw