Section 73A was introduced as an amendment to the Basic Conditions of Employment Act to allow employee(s) earning under the prescribed threshold to refer a dispute to the Commission for Conciliation, Mediation and Arbitration (“CCMA”) for claims for alleged outstanding money owed.

Prior to Section 73A, a dispute for outstanding money would have been referred to the Department of Labour, which would have to send an inspector to ascertain the extent or existence of a claim before issuing a compliance order against the employer to the extent which the employer owes the employee money.   Section 73A was introduced to expedite the process and make it easier and more efficient for employees earning below the threshold to refer a claim for alleged outstanding money without going through the Department of Labour.   Employees earning above the prescribed limit may still refer a dispute to the Labour Court or Civil Court to adjudicate an alleged claim.

While the addition of Section 73A largely made the process of referring a dispute for alleged outstanding money easier for employees earning within the threshold, the process itself is not always effective and may be abused by opportunistic Applicants who refer disputes by chance or as a “nothing to lose” gambit. Many employers have faced ambiguous claims for alleged outstanding money.   This leads to the question of what the minimum requirement for a party in referring a dispute to the CCMA in terms of section 73A should be.

While the rules of the CCMA allow the CCMA to adopt its own rules and regulations in conducting disputes, the CCMA is still informed by existing rules derived from common law and civil procedure. The CCMA adopts the legal principle of “audi alteram partem” in that both parties need to be informed of what the dispute is about to allow the parties to best represent their case when referred to the arbitration side of the process, which immediately follows conciliation, and that no party may be taken by surprise due to particulars of the claim being tactically withheld to prevent the opposing party from preparing for such.

In accordance with the CCMA’s internal guidelines on Section 73A, it provides that when referring a dispute, the Applicant must clearly set out what money is outstanding.   A claim for money is based on a liquid debt which should set out the extent of the claim with sufficient particularity to make the Respondent aware of the debt and when the alleged debt arose. The provisions further go on to set out what is “clearly” in terms of the provision.

  1. Period, which is claimed for,
  2. The value of the claim,
  3. Rate of payment calculated,
  4. If the claim relates to leave, what leave is outstanding, and when leave was taken, if at all.
  5. If the claim relates to weekends or public holidays, it must set out which dates and days worked.
  6. If the claim relates to overtime, it must set out the days and hours worked overtime, the authorisation for overtime, and the quantum of the claim.

Often, the amount is indicated, but there are no further particularities averred by the referring party to allow the Respondent the opportunity to reasonably prepare for a dispute instead of relying on the speculative nature of the referral. The CCMA could prevent this by amending the referral process accordingly to make it easier for laypersons to refer a dispute which follows the principles of fairness.

Amending the referral form or adopting a special document for claims in terms of Section 73A by including sections for the Applicant to set out what the claim is will allow for the speedy resolution and finalisation of such matters. The referral should allow for annexures by the Applicant to substantiate their claim, such as timesheets, pay slips, communication documents, the contract of employment or any governing agreement which sets out the claim. In the event of non-compliance, the CCMA should be able to assist the Applicant in remedying the non-compliance, which will allow for the process to be conducted speedily and sufficiently.

It is up to the CCMA to adjust its processes, and following the budget cuts to the CCMA, minimising referrals which result in a delay in the process should serve as a reason to adopt processes to allow litigants at the CCMA to better conduct their disputes in a fair manner to both.

Article by: Wesley Lazarus
Dispute Resolution Official – CEO George