When thinking of the CCMA, one immediately thinks of a dismissed employee lodging a complaint against their former employer. There are, however, many other services provided for by the CCMA that are not as well known or as popular.
An example hereof is a section 188A (LRA) process, Inquiry by an Arbitrator, also sometimes referred to as a Pre-Dismissal Arbitration. This is used when the dismissal of the employee is likely in consideration of charges or capacity.
This arbitration is not like the normal arbitration where the Applicant has been dismissed and has now lodged a complaint arising from the said dismissal. Usually, after dismissal, the matter will first be conciliated, and if no resolution to the dispute can be reached by the parties, the case will proceed to arbitration where the Commissioner will decide on the fairness of the dismissal.
A section 188A process, a Pre-Dismissal Arbitration, is different from the above. This process is intended to take the place of a disciplinary inquiry and all subsequent proceedings that are heard by the CCMA. An employer can, with the agreement of the employee, approach the CCMA and make an application for a Commissioner to conduct a Pre-Dismissal Arbitration, provided it relates to the employees’ conduct or capacity.
The steps required for this process are:
- The employer must inform the employee of the allegations against him, being either in relation to misconduct or capacity.
- A CCMA 7.19 form must be completed by the employer. It is required that the employee also agrees to this process by completing and signing the designated space allocated on the form or, if the employee earns in excess of the threshold as determined by the Minister of Labour from time to time, such agreement must be contained in a contract of employment.
- The employer is responsible for the costs of this process. Proof of payment must also be attached to the application.
- A copy of the completed form must be served on the employee.
- The employer is responsible for submitting the form to the CCMA by hand delivery, fax, registered mail or email.
- Within 21 days of receiving the form and proof of payment, the CCMA will give 14 days’ notice of the scheduled date of the hearing to both parties.
The applicable fees will only be refunded by the CCMA provided the matter is resolved before the CCMA has scheduled the hearing.
The parties may appear in person or be represented by:
- A co-employee;
- A director or employee if the party is a juristic person;
- Any member, office-bearer or official of a registered trade union or employers’ organisation;
- A legal practitioner, but only by agreement between the parties.
The general provisions applicable to Arbitrations also apply to Pre-Dismissal Arbitrations. The appointed Commissioner may also, on agreement by parties, revert to conciliation attempting to resolve the matter. Should the parties not agree to conciliate, or where no agreement can be reached, the Commissioner will proceed with the process. Both parties may give evidence and call and question witnesses. The Commissioner will then be vested with the decision-making powers, and he will, on conclusion of the proceedings, issue an arbitration award within 14 days. This award is final and binding and may, on non-compliance, be made an order of the court.
It is clear from the above that the Pre-Dismissal Arbitration process shortens proceedings considerably as the employee will have his disciplinary hearing, conciliation, and arbitration all in one process. One thing to keep in mind, though is that once the process has been placed in the hands of the Commissioner, the decision handed down will be final and binding. Should either party have serious concerns or any objections regarding the award issued, that party would have to approach the Labour Court, which would be futile without the necessary merits and is also a costly exercise.
Article by: Carlene van der Lith
Dispute Resolution Official – Kimberley