On a daily basis, we find that employees refer matters to the CCMA for assistance and adjudication. An example thereof could be a dispute in relation to the fairness of a dismissal. When referring such disputes, there are several forms applicable depending on the dispute at hand, and these referral forms will need to be completed correctly in order for the dispute to be heard.
An example of the aforementioned is the LRA 7.11 form. The employee must place the employer in possession of a copy of the completed form as per Rule 10 of the CCMA Rules of Conduct of Proceedings. Employers must not merely assume that the form has been properly completed. It is possible that the employee, during the completion of the form, could have made an error. Those errors might render the referral defective and the result of which may be that the CCMA does not have the necessary jurisdiction to proceed with the matter due to the fact that it has been improperly referred.
The CCMA Rules of Conduct of Proceedings and more specifically Rule 10, are very clear on what is required of an employee when referring a matter to the CCMA:
(1) A party must refer a dispute to the Commission for conciliation by delivering a completed prescribed LRA Form 7.11 (‘the referral document’).
(2) The referring party must –
(a) sign the referral document in accordance with Rule 4; and
(b) attach to the referral document, written proof, in accordance with Rule 6, that the referral document was served on the other parties to the dispute.
It is important that the employers should take note of paragraph 3 of the 7.11 referral form to ensure that the nature of the dispute has been correctly stated. Disputes regarding dismissals for misconduct, incapacity, or operational requirements are conciliated and may also be arbitrated by the CCMA.
It is important to remember that the employee has 30 days, from the date of dismissal, to file his/her referral with the CCMA or Bargaining Council. If he/she has failed to submit an application for Condonation for the Late Referral together with his late referral, then the referral is defective.
The employer should make sure that the employee has met the necessary requirements to complete the LRA 7.11. Upon the receival of the LRA 7.11, the employer should inform his or her employers’ organisation to advise on the best way forward.
Article by: Marco Horak
Dispute Resolution Official – Upington