Workplace conflict arises for various reasons: wage disputes, alleged unfair labour practices, discrimination issues and dismissals, to name a few. In such cases, employers and employees generally deadlock on points of view or employment relationships end, leading to CCMA or Bargaining Council disputes being referred.
To refer a dispute to the CCMA or Bargaining Council, a referral form, also known as an LRA 7.11 form, must be completed and filed on the opposing party in terms of Rule 10 of the CCMA Rules. A general misconception is that only dismissed employees can initiate disputes and refer cases to the CCMA. Employees, employers, trade unions, and employer’s organisations are also entitled to refer cases to the CCMA, and the LRA 7.11 form makes provision for such referrals. The 7.11 referral forms are available on hard copy from the CCMA offices, the Department of Employment and Labour, and electronically on the CCMA website. http://www.ccma.org.za/Advice/CCMA-Referral-Forms Below is an example of the 7.11 referral form.
For the matter to be correctly referred and for the CCMA or Council to set the matter down, the 7.11 referral form must be completed correctly, and all rules relating to referrals must be followed. The opposing party’s consent to have a dispute heard at the Commission is not required before referring a matter to the CCMA.
In the case of an unfair dismissal dispute, the Applicant has thirty (30) days from the date on which the dispute arose to open a case. If the case is an unfair labour practice, the Applicant has only ninety (90) days, and, with discrimination cases, the Applicant has six (6) months to refer the dispute. When calculating the days in accordance with the CCMA rules, the following must be taken into consideration:
(a) day means a calendar day
(b) the first day is excluded, and the last day is included, subject to subrule (2).
(c) The last day of any period must be excluded if it falls on a Saturday, Sunday, public holiday or on a day during the period between 16 December to 7 January.
When an employee has referred a dispute to the CCMA, it is imperative to check if they have signed the 7.11 referral form as per rule 10(2)(4) of the CCMA rules. If the Employee fails to sign the referral form, the referral can be ruled as defective. Due to the Protection of Personal Information Act (POPIA Act), notice of set downs no longer contain the detailed contact information of the parties to the dispute, and it is therefore imperative that the 7.11 referral form be forwarded to your Employers’ Organisation together with the notice of set down as it contains relevant information about the upcoming case.
Article by: Noncedo Nzimande
Legal Assistant – Pretoria