Tag Archives: CCMA

What is the CCMA?

The Commission for Conciliation, Mediation and Arbitration CCMA is a dispute settlement body. Basically, if someone believes that their dismissal was unfair, the CCMA with help settle the issue with their employer. The CCMA does not belong to any political party or business and functions completely independently. The CCMA also offers advice and training for various different subjects.

The CCMA handles disputes regarding the Labour Relations Act (LRA) and Employment Equity Act. This includes:

  1. Trade union activities at the workplace;
  2. Dismissals;
  3. Unfair labour practices; and
  4. Discrimination based on prohibited grounds.

An unfair labour practice means any unfair treatment of an employee by an employer at the workplace. This also extends to job applicants.

The following are examples of unfair labour practices:

  1. Unfair suspension of a worker;
  2. Refusal to reinstate a worker if it was agreed; and
  3. Unfair discrimination.

Every situation and dispute would be different. The CCMA can help you only if your dismissal was unfair. You may not have received proper notice or a fair hearing, for example. However, if the dismissal was due to your own misconduct and your received affair hearing, then the CCMA cannot help you. If you always came in to work late, for example, and your employer dismissed you only after a fair hearing.

How to refer a dispute

These are the steps to follow for disputes, according to the CCMA:

Step 1: If you have a labour problem, it is very important that you take steps immediately. In the case of an unfair dismissal dispute, you have only 30 days from the date on which the dispute arose to open a case, if the case is an unfair labour practice, you have only 90 days and, with discrimination cases, you have six months.

Step 2: If you have decided to lodge a dispute, you need to complete a CCMA case referral form (also known as a LRA Form 7.11.). These forms are available from the CCMA offices, Department of Labour and the CCMA website.

Step 3: Once you have completed the form, you need to ensure that a copy is delivered to the other party and you must be able to prove that a copy was sent. Acceptable methods include faxing a copy (keep the fax transmission slip), sending it by registered mail (keep the postal receipt), send it by courier (keep proof) or deliver in person (ask the person receiving it to sign for it).

Step 4: You do not have to bring the referral form to the CCMA in person. You may also fax the form or post it. Make sure that a copy of the proof that the form had been served on the other party is also enclosed.

Step 5: The CCMA will inform both parties as to the date, time and venue of the first hearing.

Step 6: Usually the first meeting is called conciliation. Only the parties, trade union or employers’ organisation representatives (if a party to the dispute is a member) and the CCMA commissioner will attend. The purpose of the hearing is to reach an agreement acceptable to both parties. Legal representation is not allowed.

Step 7: If no agreement is reached, the commissioner will issue a certificate to that effect. Depending on the nature of the dispute, the case may be referred to the CCMA for arbitration or the Labour Court as the next step.

Step 8: In order to have an arbitration hearing, you have to complete a request for arbitration form, (also known as LRA Form 7.13.). A copy must be served on the other party (same as in step 3). Arbitration should be applied for within three months from the date on which the commissioner issued the certificate.

Step 9: Arbitration is a more formal process and evidence, including witnesses and documents, may be necessary to prove your case. Parties may cross-examine each other. Legal representation may be allowed. The commissioner will make a final and binding decision, called an arbitration award, within 14 days.

Step 10: If a party does not comply with the arbitration award, it may be made an order of the Labour Court.

References:

  • Anderson, AM. Dodd, A. Roos, MC. 2012. “Everyone’s Guide to South African Law. Third Edition”. Zebra Press.
  • Ccma.org.za. The Commission for Conciliation, Mediation and Arbitration. Referring a Dispute. [online] Available at: http://www.ccma.org.za/Display.asp?L1=32&L2=9/ [Accessed 07/06/2016].

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

Is Uber legal?

Following the death of one of Uber’s employees due to clashes between Uber drivers and taxi drivers, the Department of Labour has clarified its position in terms of labour legislation.

Recently, the Department of Labour acknowledged and applauded the ruling by the Commission for Conciliation, Mediation and Arbitration (CCMA) that Uber drivers are the employees of the company. This decision was in line with the Labour Relations (Act 66 of 1995) as amended. “With regard to the Uber drivers, like any employees, there are no exceptions. They are fully protected by the South African Labour Laws including the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA)”, Commissioner Vuyo Mafata said.

Under the Labour Relations Act, any person who falls in that category is an employee and therefore fully covered in terms of labour legislation.

What happens if an Uber driver is injured?

The COID Act compensates employees who are injured or die during the cause of duty. Therefore, it means the beneficiaries of the Uber driver who died after he was allegedly attacked in Pretoria last month qualify for compensation according to the Act. However, the Fund will have to be provided with all the required documents in order to process the claim.

What about the employer, Uber?

For Uber drivers, all of this is good news. Employees will not be penalised or forfeit their benefits because of unregistered employers, instead the employers will be fined. Furthermore, employers must register their companies with the Compensation Fund so that employees are covered under the COID Act.

Reference:

  • “Department of Labour’s position in terms of Uber drivers and CCMA ruling”, Lloyd Ramutloa – the Department of Labour.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

Can surrogate parents get maternity leave?

a2bAlex and Ben are in love and decide to enter into a civil union on 31 October 2010 in terms of the Civil Union Act[1]. Everything is going great and a year later they decide as a couple to enter into a surrogacy agreement with a surrogate mother in terms of which they shall have a baby. The surrogacy agreement was in accordance with the Children’s Act[2] and was confirmed by Court Order.
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Ben and Alex discussed the logistics pertaining to their new bundle of joy. In terms of the Surrogacy Agreement they will be handed the child directly after birth, without the surrogate even catching sight of it. One or both of them will have to be available to care for the new-born from the moment of birth.

They decided that Alex would be the one to apply to his employer for paid maternity leave for a period of four months. This maternity application to his employer was in terms of the prescriptions of the Basic Conditions of Employment Act[3] (BCEA) and more specifically in terms of his company’s policy on maternity leave.

The company’s decision

Alex received feedback from his Human Resources Department, informing him that his application for maternity leave was rejected in terms of the company’s policy and the BCEA, as neither provides for the issuing of maternity leave for surrogate parents. As a counter offer Alex was offered and subsequently accepted two months paid adoption leave and two months’ unpaid leave.

Alex referred the dispute to the CCMA on the basis of unfair discrimination, because his company refused to grant his application for maternity leave due to the fact that he is not the biological mother of his child. They further argued that a commissioning parent party to a surrogacy agreement is not entitled, in terms of their company policy, to the full and due four months paid leave as females are under the same policy.

Alex was not at all satisfied with the treatment received by his company and he felt that he has been discriminated against, as the Children’s Act and the Civil Union Act both recognised his status and rights as a commissioning parent. There was therefore no excuse as to why his company and the BCEA should not recognise it as well.

The CCMA, upon hearing the matter, established that Alex’s company’s policies were similar but more stringent than the BCEA in that they provided separately for adoption leave as offered to Alex and Ben, and not at all for surrogacy rights to leave. Furthermore, it came to light that due to recent legislative developments as mentioned above, there was no reason why Alex should not be entitled to maternity leave and that such maternity leave should be granted for the full and/or same period as any other mother is entitled to.

Upon hearing submissions from Alex, Ben and Alex’s employer the CCMA decided that by refusing Alex’s application for maternity leave Alex was unfairly discriminated against by the company in its implementation and structure of its archaic maternity leave policy.

The result

The CCMA ordered that Alex be paid an amount equivalent to two months’ salary for the previously granted unpaid leave. In addition, Alex’s company must recognise the status of parties to a civil union and not discriminate against the rights of commissioning parents who have entered into a surrogacy agreement, in applying its maternity leave policy. The company was also ordered to pay Alex’s costs of having to bring this application.

Legislative intervention is needed in this regard in order to adequately and undeniably address the rights of commissioning parents to maternity leave. This case pertained to company policies and was addressed as such, but Alex and Ben initially sought relief for themselves and other similarly placed applicants so as to prevent unfair discrimination against them in this regard.

References:

  • [1] Act 17 of 2006
  • [2] Act 38 of 2005; Chapter 19
  • [3] Act 75 of 1997; Section 25 (hereinafter BCEA)

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)