UNDERSTANDING DISPUTE RESOLUTION RULES OF THE CCMA & BARGAINING COUNCILS - PART 2

Part 2 of 2

Receiving a workplace 7.11 dispute notice - whether at the CCMA or a Bargaining Council - requires following clear steps and legal timeframes. This 2nd part article provides a comprehensive look at how to refer a dispute, the applicable deadlines, and key CCMA rules every party should know. It’s an essential guide for both employers and employees navigating the formal labour dispute process. The National Bargaining Council for Hairdressing, Cosmetology, Beauty, and Skincare Industry has jurisdiction within the industry to conciliate, mediate, and arbitrate disputes relating to dismissal, unfair labour practice, and non-compliance with the provisions of the industry Main Collective Agreement.

So how does an employer/employee refer a matter to the CCMA or Bargaining Council?

To refer a dispute:

1. Complete Form 7.11 (Case Referral Form).

2. Deliver a copy to the opposing party.

3. Submit the form along with proof of delivery to the CCMA or Bargaining Council (can be emailed).

4. The CCMA or Bargaining Council will notify both parties of the conciliation/arbitration date.

An employer/employee does not need any consent form an employee/employer to refer a dispute.

Time Limits for Referrals

• Unfair dismissals: 30 days from date of dismissal.

• Unfair labour practices: 90 days from date of occurrence.

• Discrimination: 180 days from date of alleged incident.

Late referrals require a Condonation Application, explaining the delay and justifying why the matter should still be heard.

Key CCMA Rules Employers should Know:

Rule 1: Compliance with POPIA

• When a party serves or files on the other party or the Commission documents in terms of these rules, or processes documents that contain personal information with the other party, such party must comply with POPIA.

Rule 3: Time Periods

• Time is counted in calendar days.

• If the deadline falls on a weekend or public holiday, it moves to the next working day.

Rule 9: Condonation (Employee or Employer submission)

When submitting documents late, your application must address:

• How late the submission is.

• Why it was late.

• Your prospects of success.

• Prejudice to the other party.

• Any other relevant factors.

Rule 16: Conciliation proceedings may not be disclosed

• Conciliation proceedings are private and confidential and are conducted on a without prejudice basis and no person may refer to anything said at the conciliation during subsequent proceedings unless the parties agree in writing or as ordered to do so by a court of law. Only a court of law or a commissioner conducting an arbitration hearing may call a person (or a judge in the case of the court) as a witness in any subsequent proceedings in the CCMA or in any court, to give evidence about what happened during the conciliation hearing.

• This does not apply to discussions that may have been held regarding potential offers for settlement.

Rule 17: Con/Arb Process

• The CCMA must give (fourteen) 14 days’ notice of the date of a con/arb hearing unless the parties agree to a shorter period or reasonable circumstances require a shorter period, for example if a party intends to leave the country.

• Objection to a con/arb is not permissible in disputes relating to the dismissal of an employee for any reason related to probation or unfair labour practice relating to probation; or a dispute relating to a compliance order referred to the Commission in terms of section 69(5) of the BCEA;); or a claim for monies owing referred to the Commission in terms of section 73A of the BCEA.

• In other matters, a party may object to a con/arb in writing at least seven (7) days before the scheduled date. If a party does not attend the hearing, the commissioner must commence with the arbitration immediately after issuing a certificate stating that the dispute remains unresolved.

• The CCMA may schedule conciliation and arbitration (Con/Arb) on the same day.

• Parties can object (except in probation dismissals or non-payment claims) at least 7 days before.

• Without objection, arbitration proceeds immediately after conciliation - even if one party is absent.

However the Bargaining Council does not do Con/Arb on the same day.

• The Bargaining Council may schedule conciliation within 14 days’ after receiving the 7.11.

• The Bargaining Council may schedule arbitrations within 21 days after the conciliation was unsuccessful to resolve the dispute.

Rule 18: How to request arbitration / proceeding to arbitration

• You have ninety (90) days after the earlier of the date that the 30-day conciliation period ended, or a certificate of non-resolution was issued, to request arbitration. The Labour Relations Act Form 7.13 is utilised for this purpose. Proof of service is the same as that for other referrals.

• If the request for arbitration is late, you need to apply for condonation (see Rule 9 read with Rule 31). In an instance where the request for arbitration is late and no application for condonation is attached thereto, the Commission will decide whether the condonation will be determined at a hearing or by written submissions received from the parties.

• You may use the CCMA’s online referral platform to apply for arbitration and for condonation. The council's application forms are on their website - www.hcsbc.co.za.

Rule 23: Postponements

• The parties may confirm in writing that they agree to the postponement of the arbitration hearing and send the written confirmation of the postponement to the CCMA at least seven (7) days before the scheduled date. This will, however, not lead to an automatic right to postponement. The Commission will still be required to rule on postponement.

• In the absence of an agreement to postpone or where there is fewer than seven (7) days before the arbitration hearing, an application for postponement must be made in writing (see Rule 31) and the Commission will decide whether to postpone the matter.

• Postponement is not a right, but an indulgence.

Rule 25: Representation

An Employer/Employee does not need permission from the employee/employer to refer a matter to the CCMA and or Bargaining Council.

• In conciliation: Legal representation is not allowed (unless legal issues arise), but parties can be represented by a union or employer association official.

• In arbitration: Legal representation is generally allowed, but may require consent or a formal application in misconduct/incapacity cases.

The application must cover:

1. Legal complexity of the case

2. Public interest

3. Nature of the dispute

4. Capability of parties and representatives

Rule 29: Disclosure of documents or materials related to the dispute

• An application for disclosure (handing over) of documents or material relevant to the dispute may be made at any time after the certificate of outcome has been issued or the expiry of the 30-day conciliation period, but not less than fourteen (14) days prior to the arbitration hearing date. Such application for disclosure must be brought in terms of Rule 31 and may be opposed, where after a reply may be furnished. A commissioner may either before or during the proceedings at the commissioner’s own accord, or on application, make an order as to the disclosure of relevant documents or material, or the parties may agree on the disclosure.

Rule 30: What happens if a party fails to attend arbitration?

• If the party that referred the case fails to attend arbitration, the commissioner must establish the reasons for non-attendance and if considered satisfactory, may direct the matter to be rescheduled. The commissioner may exercise discretion

Rule 31: Applications

• Any application, for example, an application for condonation, rescission, or postponement, must be brought in accordance with Rule 31. The application must be supported by an affidavit or written statement.

• The application must be brought at least fourteen (14) days before the scheduled hearing. The other party has five (5) days to respond, and the applicant party has three (3) days to reply to the response.

An application for condonation may be made by using the CCMA’s electronic referral online platform, or in the case of the council, using to forms provided on their website.

Used for technical issues such as:

• Condonation

• Joinder or substitution

• Variation or rescission

• Jurisdiction

Must include:

• Case title and number

• Relief sought

• Service address

• List of documents

• Affidavit or written statement

Rule 32: Variations and Rescissions

• Must be filed within 14 days of learning about the award.

• Rescission is used if the ruling was made in a party’s absence.

• Variation corrects errors in the ruling.

Rule 37: Subpoenas

• Submit Form 7.16 and motivation at least 14 days before arbitration.

• Subpoena compels attendance or document production.

• The requesting party pays witness fees unless waived.

Rule 37a: Expert witnesses

• A party intending to call an expert witness such as a medical doctor or polygraph analyst, must give the other party seven (7) days’ notice together with a summary of why the person is regarded to be an expert, the proposed evidence

Rule 40: Certification of arbitration awards

• If the other party fails to comply with the award, the effected party may apply for the award to be certified in terms of section 143 of the Labour Relations Act by completing LRA Form 7.18.

• Once the award is certified, and if it is for payment of money, the Sheriff of the court in the Magisterial District where the employer/employee party resides or conducts business may enforce the award through execution. Such money shall include the amount ordered to be paid in terms of the arbitration award, any award of costs, an arbitration fee charged in terms of section 140 (2) of the Labour Relations Act, any interest on the amount set out in the award, and the Sheriff’s costs permitted in terms of the Magistrate’s Court Tariff for Sheriffs.

• The CCMA/Bargaining Council may also recover its costs in situations where it financially assisted the party in whose favour the award was granted in the enforcement or execution thereof.

• If the award orders the performance of an act other than the payment of money, such as reinstatement, the effected party may institute contempt proceedings in the Labour Court.

Rule 41a: Payment of an arbitration fee issued in terms of section 140(2) of the LRA

• An arbitrator can decide whether or not to order an arbitration fee in matters where the dismissal is only procedurally unfair. This fee is set out in the Commission’s Tariff of Fees and is payable by the employer within fourteen (14) days of receipt of the award, with invoice, ordering payment of such a fee. Payment may be made by electronic transfer into the bank account of the Commission.

Having a clear understanding how the CCMA and Bargaining Councils operate in terms of dispute resolution ensures that both employers and employees can address disputes efficiently and lawfully. Familiarity with the relevant rules and processes - particularly around representation, timelines, and procedural requirements - is key to successfully navigating South Africa’s labour dispute resolution system.