For most individuals, their employment income is their only security for survival. The high unemployment rate in South Africa has even further reduced many households to rely on one breadwinner’s income. The job security of that breadwinner therefore, becomes critical.
What do you do, when you think you have been dismissed unfairly?
The unfairness of a dismissal can either be substantive (facts, issues, reasons) or procedural (manner). It is important to note which one your dispute relies on.
Within 30 days of unfair dismissal, the matter must be referred to either the CCMA or a relevant industry bargaining council. It is important to know if the industry you work in has a bargaining council or not to avoid delays or defective referrals.
Should the referral not be within 30 days, then it must be accompanied by a condonation application (usually an affidavit) stating the reasons for the delay, that the other party will not be prejudiced should condonation be granted, and that the case has good prospects of success.
Labour disputes for general public service employees are referred to GPSSBC, motor and road freight labour disputes go to NRFIBC, health industry labour disputes are referred to PHSDSBC, for education sector to ELRC whilst those in the local government are referred to SALGBC. There are several others not mentioned here.
Where in any industry there is no particular bargaining council, then the matter is referred to the CCMA.
Upon successful referral the secretariat / admin of the CCMA or bargaining council will allocate a case number, the name of the commissioner who will handle the matter and the date for Conciliation. In other instances the allocated date will be for Con/Arb which means arbitration will commence on the same day thereafter should conciliation not resolve the dispute. You need to specify on the application form should you not want both proceedings to happen on the same day.
The referral process will follow this pattern:
Step 1: Within 30 days of unfair dismissal, collect / download referral forms and complete all required information.
Step 2: Send a copy of the completed referral forms to the other party with whom you are in dispute with (by fax, registered post, or hand delivery).
Step 3: Within the said 30 days from date of dispute/dismissal, send to the CCMA or bargaining council the referral forms and proof that you sent the referral forms to the other party e.g fax confirmation slip, registered post slip, signature of person who received forms by hand, affidavit by other party that he/she received the referral forms if sent by email.
Step 4: The CCMA / Bargaining council will allocate a case number, commissioner and the date on which the unfair dismissal matter will be heard for conciliation.
Step 5: Attend conciliation on the date allocated and if conciliation fails to resolve the dispute, then the commissioner will issue a certificate to such effect.
Step 6: Within 90 days from the date when the commissioner issues a certificate that the matter has remained unresolved after conciliation, the matter must be referred to arbitration.
Step 7: Fill in referral forms for arbitration and serve on the other party.
Step 8: Submit the referral forms for arbitration to the same labour forum that handled the conciliation, attach proof of service to the other party, and the commissioner’s certificate that the matter remained unresolved after conciliation.
Step 9: Upon successful referral the secretariat / admin of the CCMA or bargaining council will allocate the name of the commissioner and the date for Arbitration.
Step 10: On the allocated day the matter will be heard by arbitration and thereafter the commissioner will hand down decision within 14 days.