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Provided by the Commission for Conciliation, Mediation and Arbitration (CCMA)



PREPARATORY STEPS
FOR CCMA
DISPUTE RESOLUTION PROCESSES CCMA Guidelines for Respondents

The following guidelines are made with a view towards assisting respondents to carry out preparations for conciliation, arbitration and associated processes.

The guidelines draw from and interpret the "Rules Regulating the Practice and Procedure for Resolving Disputes through Conciliation and at Arbitration Proceedings" - Regulation Gazette no. 6633, Government Notice R.245 of 31 March 2000 (commonly known as "the CCMA Rules").

The guidelines need to be read together with these Rules and the Labour Relations Act 66 of 1995 as amended ("the Act"). In terms of s115(6)(a) and (b) of the Act such rules have full legal force.

The guidelines are designed to facilitate the effective use of the CCMA. We hope this will make a significant contribution towards streamlining the dispute resolution process and avoiding unnecessary pitfalls in the application of the law.


1. CONCILIATION

The Act requires that all disputes falling within its jurisdiction must be conciliated. Conciliation is a relatively informal and flexible process in which an independent third party assists the parties in dispute to reach an agreement. It is a quick and inexpensive way of settling a dispute. It is also private and confidential, being conducted on a without prejudice basis. No party may refer to any statements made at conciliation proceedings during any subsequent proceedings, unless the parties have agreed to this in writing. S135(3) of the Act outlines the conciliation process, stipulating that:

The commissioner must determine a process to attempt to resolve the dispute, which may include-
(a) mediating the dispute;
(b) conducting a fact-finding exercise; and
(c) making a recommendation to the parties, which may be in the form of an advisory
arbitration award.

Conciliation proceedings in respect of more than one dispute involving the same parties may be consolidated. In terms of s135(3)(A) of the Act, where a commissioner has been appointed in respect of more than one dispute involving the same parties, the commissioner may deal with all the disputes in the same proceedings.

It is important to bear in mind that the sooner a dispute is addressed and settled the better it is for all parties involved. The dispute will not simply go away, and each time a respondent has to deal with a dispute it is a time-consuming and hence costly exercise. This means it is in the interests of a respondent to find a solution to the dispute at the pre-conciliation or conciliation stage.


1.1 Exhaust internal procedures and processes

The Act requires parties to exhaust internal procedures before a dispute is referred to the CCMA. Ensure that all internal procedures have been exhausted prior to a conciliation hearing being held, and that every effort has been made to settle the dispute directly with the employee involved and his/her trade union representatives.

Workplace procedures
To facilitate internal problem solving and dispute resolution, ensure that suitable workplace procedures are in place. Effective and legitimate procedures limit disputes arising and facilitate their resolution at the workplace. Common workplace procedures include probation procedures, disciplinary procedures for misconduct, incapacity procedures for poor performance, incapacity procedures for ill health, and grievance procedures.

Organisational rights
In the case of organisational rights disputes, check that the provisions of S21(1), (2) and (3) of the Act have been complied with. Unless the provisions of S21 have been complied with a dispute referred is premature.

Mutual interest
Where a mutual interest issue is involved make every effort to ensure that the negotiation process is exhausted.

Unfair discrimination
In the case of an unfair discrimination dispute ensure that an attempt has been made to resolve the issue internally in compliance with S10(4)(b) of the Employment Equity Act 55 of 1998 (EEA).

Dismissals
In the case of dismissal disputes ensure that all the requirements of the Act have been followed. Depending on the nature of the dismissal, this includes S189 "dismissals based on operational requirements" and the associated code of good practice, or schedule 8 "code of good practice: dismissal". Also ensure the requirements of Chapter Five "termination of employment" of the Basic Conditions of Employment Act 75 of 1997 (BCEA) have been followed.

Settlement prior to conciliation
Forward written notice to the CCMA if it is agreed to withdraw the referral, or settlement with the applicant is reached prior to the conciliation hearing.


1.2 Consider all jurisdictional issues

On receipt of the referral for conciliation, check that the CCMA has jurisdiction for the dispute being referred. Examples of jurisdictional issues that commonly arise are:

· an internal dispute resolution procedure has not been exhausted;
· S21 of the Act has not been followed in the case of organisational rights disputes;
· S10 of the EEA has not been complied with in the case of unfair discrimination disputes;
· the dispute is covered by a bargaining council and not by the CCMA;
· the applicant is not an employee;
· a dismissal did not actually occur (in the case of a dismissal dispute);
· the dispute resolution process is covered by a collective agreement;
· the issue is covered by the Department of Labour (for example, disputes over entitlements to outstanding salary covered by the BCEA).

If there is a jurisdictional issue arising from a referral, forward written submissions to the CCMA and the applicant in advance of the conciliation hearing, following CCMA Rule 19.

Jurisdiction to conciliate
It is important to bear in mind CCMA Rule 6 - jurisdiction to conciliate:

 

6.1 The commissioner appointed to conciliate the dispute may only conciliate the dispute and thereafter issue a certificate in terms of S135(5) of the Act if the Commission has jurisdiction to conciliate.

 

6.2 If at any stage during the conciliation proceedings it becomes apparent that there is a jurisdictional issue which has not been determined, the commissioner must require the referring party to prove that the Commission has the necessary jurisdiction to resolve the dispute through conciliation.

 

Late referrals
S191(1) of the Act requires dismissal disputes to be referred within 30 days of the dismissal. Take note that the 30-day period is ordinary calendar days. Where a referral is late the applicant must apply for condonation following CCMA Rule 5.3:

If it is necessary to apply for condonation because the referral is being served out of time, the referring party/parties must at the time of the referral comply with the provisions of rule 19 and set out the grounds on which condonation is sought by attaching to the referral document details of the following:


(a) The degree of lateness;
(b) the reasons for the lateness;
(c) the referring party's prospects of succeeding with the referral and obtaining the relief sought against the other party; and
(d) the balance of convenience, including any prejudice to the other party.

 

Take note of CCMA Rule 5.4:

The Commission must refuse to accept a referral document until such time as Rule 5.1 to 5.3 have been complied with.

Carefully considering all jurisdictional issues prior to the hearing contributes towards the avoidance of unnecessary in limine hearings and the streamlining of the dispute resolution process. Bear in mind that any jurisdictional issue that may need to be addressed on the scheduled conciliation date will be determined through an in limine hearing. An limine hearing is separate to the conciliation process and representation must follow the provisions of S138(4) of the Act.

 

1.3 Check the CCMA referral form

Check that LRA Form 7.11 is completed accurately and correctly. Check that the dispute has been accurately categorised, the employer correctly cited, and that the form has been signed.

Where the form has not been correctly completed, forward written submissions to the CCMA and the applicant in advance of the conciliation hearing, following CCMA Rule 19. If it becomes apparent that a duplicate form has been referred, notify the CCMA and applicant accordingly.

Consider the provisions of S135(3)(A) of the Act regarding the consolidation of referrals when the same parties are involved.


1.4 Avoid postponements

Once notice of a conciliation hearing has been received, avoid requesting postponement. The CCMA Rules do not provide for postponement at conciliation, and generally an application for postponement will not be considered. If the parties require time to settle then the conciliation will be postponed to a fixed date for the filing of a settlement agreement. Whether or not filed, a certificate will be issued on the postponed date declaring the dispute resolved or unresolved.


1.5 Ensure appropriate representation
Ensure representation at the conciliation hearing follows the requirements of S135(4) of the Act:

In conciliation proceedings a party to the dispute may appear in person or be represented only by-

(a) a director or employee of that party; or
(b) any member, office bearer or official of that party's registered trade union
or
registered employers' organisation.

CCMA Rule 7.2 states that:

A conciliation hearing may only be attended by the parties to a dispute, their representatives referred to in S135(4) of the Act, and such other persons who, in the discretion of the Commission, are allowed to attend.

Only representatives referred to in S135(4) of the Act may attend the conciliation hearing and represent parties. In terms of Rule 7.2 the commissioner has discretion to allow other persons than the parties and their representatives to attend the hearing. This may be a party's legal representative, but s/he will not be entitled to speak on behalf of a party.


1.6 Attend the hearing
Make every effort to attend the conciliation hearing, and bear in mind section 1.4 above regarding postponements. 'No-shows' undermine the Act's objective of quick and fair dispute resolution, remove any chance of settlement, and are a significant drain on CCMA resources. Not participating generally prolongs the resolution of the dispute.

Bear in mind the provisions of CCMA Rule 7.7, including the following:

If a referring party fails to attend a conciliation hearing at the scheduled time, the referral will be regarded as having been abandoned by the referring party. If the referring party later decides to pursue the matter, the referring party will have to refer the dispute again under the same case number and if necessary, apply for condonation explaining …

Determination of the nature of the dispute
In the eventuality of any disagreement regarding the nature of the dispute, the conciliating commissioner may decide upon the nature of the dispute. CCMA Rules 7.5 and 7.6 state that:

7.5 The parties may during the conciliation process agree on the nature of the dispute, whereupon the conciliating commissioners may attempt to resolve that dispute and, should this not be possible, may issue a certificate of non-resolution in respect of that dispute even though the description of it may be different from the description of the dispute contained in the referral document.

7.6 In the event of disagreement regarding the nature of a dispute, the conciliating commissioner must issue a certificate of non-resolution in respect of the dispute as identified by the commissioner in the conciliation process.


1.7 Be prepared
Ensure representatives are well versed with the case, and have settlement proposals and a mandate. Endeavour to develop a creative mandate enabling a range of settlement options.

Schedule sufficient time to allow for the hearing to proceed over the allocated time frame, where necessary and possible. This could facilitate settlement.

Bring documentation that might assist in clarifying issues, including documentary evidence. However, leading evidence through witnesses is not carried out at conciliation.


1.8 Participate in telephonic conciliation
Depending on the nature and complexity of the dispute, the CCMA may decide to conduct a telephonic conciliation. A commissioner or case management officer would attempt to resolve the matter telephonically instead of scheduling and holding a hearing. Be open to seeking a settlement in this manner, as this will mean that the dispute could be settled immediately without the need for a hearing.

Should the dispute be settled through telephonic conciliation, an outcome certificate would be issued and a settlement agreement drafted for signing by both parties.

Where the dispute is unsettled and the CCMA is satisfied that a reasonable attempt has been made to conciliate the dispute, a certificate of outcome will be issued by a commissioner. Where the next step is the Labour Court, the applicant will be given the option of going through the conciliation process or being issued a certificate of non-resolution to proceed to the Labour Court.

Where the CCMA is not satisfied that a reasonable attempt has been made to conciliate the dispute, the matter will be scheduled for a conciliation hearing.


1.9 Aim to settle at conciliation

Where the internal dispute resolution processes have not settled the dispute, settlement at the conciliation stage should be seen as first prize in terms of the dispute resolution process provided by the Act. Conciliation provides for the quick and fair resolution of disputes. The decision-making regarding the outcome lies in the hands of the parties involved, and the conciliation process is uncomplicated. It is also inexpensive, and does not require legal representation.

Conciliation not only effectively resolve disputes, but is can also an important learning process which assists in the reduction of future disputes.

Engage with the process
Be prepared to participate in conciliation hearings with a view to engaging with the process and exploring all possible options for settlement. Avoid carrying over any personal tensions with the applicant/s that might have arisen during the internal process, and be prepared to concentrate on finding solutions to the dispute.

Conciliation agreement
Where an agreement is reached at the conciliation hearing, the commissioner will issue a certificate of outcome and a settlement agreement, stipulating the terms of the settlement. A conciliation settlement agreement is final and binding on both parties. If either party does not uphold the terms of the agreement, an application can be made to the Labour Court for the settlement agreement to be made an order of the court.

If settlement not possible
If the conciliation hearing does not result in a settlement being reached, an outcome certificate will be issued to this effect. The CCMA has 30 days from the date of receipt of the referral in which to bring conciliation to conclusion and issue an outcome certificate, unless the parties agree to extend the period.

The nature of the dispute, as stated on the outcome certificate, will determine whether the case may proceed to CCMA arbitration or to the Labour Court for adjudication.

2. ARBITRATION
In principle the preparatory steps for conciliation also apply to arbitration, including: correct completion of the referral form, appropriate representation, being suitably prepared, and dealing with jurisdictional issues. Unlike conciliation however, arbitration is a more formal process, and the arbitrator must make a determination of the outcome of the dispute in the form of an award. Whereas conciliation is a voluntary process where the parties agree the terms of the agreement, in an arbitration the arbitrator imposes an award on the parties after hearing the evidence.

S138 of the Act stipulates that-

(1) The commissioner may conduct the arbitration in a manner that the commissioner
considers appropriate in order to determine the dispute fairly and quickly, but must
deal with the substantial merits of the dispute with the minimum of legal formalities.

(2) Subject to the discretion of the commissioner as to the appropriate form of the proceedings, a party to the dispute may give evidence, call witnesses, question the witnesses of any other party, and address concluding arguments to the commissioner.

2.1 Check the CCMA referral form and consider jurisdictional issues
On receipt of the referral form LRA 7.13, check that it has been correctly completed. Bear in mind that the CCMA can only arbitrate if a request for arbitration is filed and a certificate has been issued. The CCMA holds the view that S191(5) is subject to the provisions of S135(5)(a), which requires the conciliating commissioner to issue a certificate when (1) conciliation has failed or when (2) the 30 day period has expired from the date the CCMA received the conciliation referral. In terms of S136(1)(b) of the Act the arbitration must be referred to the CCMA within 90 days of the issuing of the certificate.

Consider all jurisdictional issues. Examples of disputes where the CCMA would not have jurisdiction to arbitrate (unless the parties agree) concern disputes about unfair discrimination and dismissals due to operational requirements (and see annexure 1). These disputes must be referred to the Labour Court.

Where the arbitration referral form has not been correctly completed or where there is a jurisdictional issue arising from a referral, forward written submissions to the CCMA and the applicant in advance of the arbitration hearing following CCMA Rule 19.

Bear in mind CCMA Rule 12, including 12.1:

The Commission may combine cases or join parties in proceedings, if the right to relief depends on the determination of substantially the same question of law or fact.


2.2 Start preparations timeously
The CCMA will notify you of the date, time and venue of the arbitration hearing. In terms of Rule 20 the Commission must give the parties 15 day's notice of an arbitration hearing, unless otherwise agreed. It is advisable to immediately begin your preparations for the arbitration by consulting with all relevant witnesses and obtaining all relevant documentary evidence.

2.3 Avoid postponements
Postponements of arbitration hearings are costly and undesirable. Postponements will only be granted where there is compliance with CCMA Rule 17. CCMA Rule 17.1 provides that:

Postponements will be granted without the need for the parties to appear if both of the following conditions are met:

(a) All the parties to the dispute agree in writing to the postponement; and
(b) the request for the postponement is received by the Commission more than 10 days prior to the scheduled date of the arbitration.

In all other cases a formal application in writing for postponement must be made and served before the scheduled date for the arbitration.

2.4 Be open to settlement through conciliation
S138(3) of the Act provides for conciliation during the arbitration process. Settlement through conciliation is still the desirable option as the parties retain the right to settle on their own terms. Be prepared for possible settlement before or during the arbitration process.

2.5 Prepare submissions and evidence for the arbitration
Prepare the evidence you will lead at the arbitration. Determine which issues are in dispute and which issues are not. Ensure the submissions you intend to make are clear and concise. Compile all relevant documents and make copies for the arbitrator and the applicant. These copies should be collated into a bundle with each copy given a page number. Prepare an index for the bundle. Correspond with the other party and attempt to secure agreement over the issues covered in Rule 10. Prepare which witnesses you will call to support your case.

2.6 Hold a pre-arbitration conference
CCMA Rule 10.1 provides that:
By agreement between the parties or when so directed by the director or a senior commissioner the parties to the proceedings must hold a pre-arbitration conference dealing with the matters referred to in rule 10.2.

It is preferable for a pre-arbitration conference to be held attended by all parties to the dispute, particularly where the dispute is complex, following the provisions of CCMA Rule 10.2. The purpose of a pre-arbitration conference is to streamline the arbitration hearing. It also assists parties to ensure that they are properly prepared for the arbitration. At a pre-arbitration conference the following issues are discussed: facts in dispute, common cause facts, issue/s to be decided, relief claimed and the exchange of documents that will be used in the arbitration. At the conclusion of the pre-arbitration conference draw up and sign a minute and submit the minute to the appointed commissioner at least seven days prior to the arbitration hearing.


2.7 Bring appropriate witnesses
Ensure that the appropriate witnesses are available for the hearing, but avoid bringing unnecessary witnesses. Do not request the CCMA to subpoena witnesses unless absolutely necessary. Follow CCMA Rule 18 when requesting a subpoena.


2.8 Ensure appropriate representation
Ensure representation follows the requirements of S138(4) of the Act:

In arbitration proceedings a party to the dispute may appear in person or be represented only by-
(a) a legal practitioner;
(b) a director or employee of the party; or
(c) any member, office-bearer or official of that party's registered trade union or registered employers' organisation.
In the case of dismissals for reasons related to conduct or capacity, bear in mind S140 of the Act:

(1) If the dispute being arbitrated is about the fairness of a dismissal and a party has alleged that the reason for the dismissal relates to the employee's conduct or capacity, the parties, despite S138(4), are not entitled to be represented by a legal practitioner in the arbitration proceedings unless-

(a) the commissioner and all other parties consent; or
(b) the commissioner concludes that it is unreasonable to expect a party to deal with the dispute without legal representation, after considering-

(i) the nature of the questions of law raised by the dispute;
(ii) the complexity of the dispute;
(iii) the public interest; and
(iv) the comparative ability of the opposing parties or representatives to deal with the arbitration of the dispute.

Ensure that representatives have a direct knowledge of the case.

Bear in mind CCMA Rule 21.1:

S138(4) read with S140 of the Act explicitly states who may appear or be represented in arbitration proceedings. A commissioner has no discretion to permit any person other than those listed in that section to appear or act as a representative even if the other parties have no objection.

Where an advocate appears in that capacity (as an advocate) at a CCMA hearing sh/e only has right of appearance if briefed by a firm of attorneys. Advocates are required by the commissioner to place the name of the briefing firm of attorneys on record. An advocate may either be briefed with a brief or verbally.

2.9 Failure to attend can mean the hearing will proceed
S138(5)(b) of the Act allows the commissioner to proceed with the arbitration hearing in the case where the respondent does not appear.

CCMA Rule 23 stipulates the following:

23.1 If a party fails to appear in person or to be properly represented at a scheduled arbitration hearing, the commissioner may act in terms of
S 138(5) of the Act.

23.2 The commissioner must be satisfied that the parties have been properly notified of the date, time and venue of the arbitration proceedings, before making any decision in terms of S138(5).

23.3 The Commission must notify the parties if a matter is dismissed.

If the arbitrator proceeds, with or without the respondent, the respondent will still be bound by the arbitration award.


2.10 The respondent bears the onus to establish fairness in dismissals
S192 of the Act states that:

(1) In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal.

(2) If the existence of the dismissal is established, the employer must prove that the dismissal is fair.


2.11 The arbitration award must be issued within fourteen days

An arbitration award must be issued within fourteen days of the conclusion of the arbitration proceedings and served on both parties. On good cause shown by the arbitrating commissioner, the CCMA Director may extend this period. The arbitration award usually covers the following areas: details of hearing and representation, issues to be decided, background to the issue, survey of evidence and arguments, analysis of evidence and arguments, and the award.

An arbitration award is final and binding. Should the respondent fail to follow the award, the applicant can refer the matter to the Labour Court for the award to be made an order of the court.

2.12 Avoid procedural unfairness and acting in a frivolous or vexatious manner - costs may be ordered

Arbitration fee
In cases of dismissal relating to conduct or capacity where a commissioner finds that a dismissal is procedurally unfair, in terms of S140(2) of the Act the commissioner may charge an employer an arbitration fee.

Cost order for vexatious or frivolous behaviour
In terms of S138(10) of the Act a commissioner may include an order for costs in the arbitration award if a party or person who represented the party in the proceedings acted in a vexatious or frivolous manner:

(a) by proceeding with or defending the dispute in the arbitration proceedings; or

(b) in its conduct during the arbitration proceedings.

Meaning of 'costs'
The term 'costs' refers to an order by a CCMA commissioner for parties to pay the other party or parties for certain expenses incurred in having a dispute resolved through arbitration. Cost orders only allow certain expenses incurred in the arbitration to be recovered, such as legal costs incurred and certain disbursements incurred, such as subsistence and travelling costs of witnesses.nt of the amount allowed for costs claimed and is carried out by a CCMA taxing officer following CCMA Rules 14 and 15. Once the bill of costs has been taxed the amount of money allowed by the taxing officer can be claimed from the other party.

3. OTHER IMPORTANT PROVISIONS OF THE CCMA RULES AND THE ACT

The CCMA Rules include a number of other provisions which, read with the Act, need to be taken into careful consideration when making use of the CCMA.

3.1 Applications / motion proceedings in respect of preliminary matters

CCMA Rule 19 stipulates the required processes for applications for condonation, jurisdictional disputes, variation and rescission applications, and other interlocutory applications (for example, change of citation and joinder of parties). Compliance with CCMA Rule 19 is extremely important to ensure effective and smooth functioning of CCMA processes.

Rule 19 provides that any application must be in writing and served on all parties to the dispute and the CCMA. In terms of Rule 19.2 the application must state:

(a) The title of the matter;
(b) the case number assigned to the matter by the Commission;
(c) the relief sought;
(d) an address of the party delivering the document at which the party will accept notices and service of all documents and proceedings;
(e) a notice advising the other party that if intends opposing the matter, the party must deliver an answering affidavit within five days after the application has been served, failing which the matter may be heard in the party's absence, and
(f) a schedule listing the documents that are material and relevant to the application.

An affidavit must be attached to the application in terms of Rule 19.3 setting out:

(a) the names, description and addresses of the parties;
(b) a statement of the material facts, in chronological order, on which the application is based, which statement must be in sufficient detail to enable any person opposing the application to reply to the document;
(c) a statement of the legal issues that arise from the material facts, which statement must be sufficient in detail to enable any party to reply to the document; and
(d) the relief sought.

CCMA Rule 19.9 stipulates that:
Any ruling made by a commissioner in terms of these Rules which has the effect of a final order will be regarded as an arbitration award.
3.2 Review, variation and rescission of arbitration awards or rulings

Review: S145
Where a party alleges a defect with a commissioner's ruling or award, the party's remedy is to review the decision in the Labour Court in terms of S145 of the Act. In terms of S145 of the Act any party who alleges a defect in the arbitration proceedings may apply to the Labour Court to set aside the award within six weeks of the award being served.

In terms of S145(2), a defect means -

(a) that the commissioner -

(i) committed misconduct in relation to the duties of the commissioner as an arbitrator;

(ii) committed a gross irregularity in the conduct of the arbitration proceedings; or

(iii) exceeded the commissioner's powers; or

(b) that an award has been improperly obtained.

It is important to note that the review is not an appeal, is not on merit and is only related to the commissioner's conduct.

Variation or rescission: S144
A party may apply for variation or rescission of a ruling or an arbitration award in terms of S144 of the Act. In terms of S144, a commissioner acting on their own accord or on application from any affected party, may vary or rescind an arbitration award -

(a) erroneously sought or erroneously made in the absence of any party affected by that award;

(b) in which there is an ambiguity, or an obvious error or omission, but only to the extent of that ambiguity, error or omission; or

(c) granted as a result of a mistake common to the parties to the proceedings.

The application must comply with the provisions of the CCMA Rule 19: it must include a notice of motion supported by affidavit and be served on the applicant. The application must be brought within 10 days of the date on which the applicant became aware of-
(a) the arbitration award or ruling; or
(b) a mistake common to the parties to the proceedings.
(see Rule 24)

Limited application of S144
There are a limited range of circumstances where S144 can be applied. If a ruling or award was made, for example, arising out of a process where both parties were present, it is unlikely that a rescission can be considered. Recourse in this circumstance would be by application of S145 of the Act: a review of the award or ruling to the Labour court.

The same commissioner must hear the application
The commissioner who issued the arbitration award or ruling must hear the application for variation / rescission. CCMA Rule 24.3 does provide that "the commission may, on good cause shown, appoint any commissioner to hear the application".

Good cause in this case means if the commissioner who made the award is unavailable through illness, death, or has resigned, or has been transferred or is doing duty elsewhere.

All decisions constitute a ruling
All decisions made by a commissioner during a process constitute a ruling.


3.3 Definition of 'day'

In terms of the definition of 'day' in the CCMA Rules a 'day' is calculated as a working day and is defined as:

"any day excluding Saturday, Sunday, public holiday and the days in the period from 16 December to 7 January, both days inclusive; when any particular number of days is prescribed for the doing of any act, the number of days must be calculated by excluding the first day and including the last day, unless the last day falls on a Saturday, Sunday, public holiday or on a day during the period 16 December to 7 January, in which event the number of days must be calculated to exclude the first day and also such last day".

The definition of 'day' in the Act is different to that in the CCMA Rules. A 'day' in the Act means a calendar day, as opposed to a working day. It is important to bear this in mind when calculating the 30-day referral period for conciliation and the 90-day referral period for arbitration.

The Act does not define 'day' which means that one has to refer to S4 of the Interpretation Act of 1957. In terms of S4 of this Act all days including weekends and public holidays are counted, and days are counted by excluding the first day and including the last day.

ANNEXURE 1

The following is a complete list of possible processes that disputes would follow where conciliation has failed:

CCMA arbitration

Collective agreements:

Interpretation or application of collective agreement

24(5)

Interpretation or application of lapsed collective agreement

61(13)

Disclosure of information

16(9)

Disputes in essential services

74(4)

Interpretation or application of ministerial determination

45(4)

Organisational rights:

Collective agreement on organisational rights

21(7)

Withdrawal of organisational rights

21(11)

Interpretation or application of organisational rights

2(4)

Severance pay

147 [BCEA]

Dismissals:

Misconduct, capacity, performance, unknown reasons, constructive dismissal

191(5)(a)

Unfair labour practices

Sch 7, 3(4)(b)

Workplace forums:

Joint decision-making

86(7)

Disclosure of information

89(6)

Interpretation or application of workplace forum provisions

94(4)

Labour Court adjudication

Admission of parties to a Bargaining Council

56

Admission of union to a closed shop agreement

26

Breaches of picketing provisions or picketing agreements

69

Dismissals:

Automatically unfair dismissals

191(5)(b)(i)

Dismissals based on operational requirements

191(5)(b)(ii)

Dismissals for participating in an unprotected strike

191(5)(b)(iii)

Dismissals connected with closed shops

191(5)(b)(iv)

Freedom of association

9

Unfair discrimination

10, Ch 11 [EEA]

Disputes that cannot be arbitrated or adjudicated

Mutual interest

64(1), 134

Unilateral change to terms and conditions

64(4)

Courses and Workshops

 

                                         

 

 

 

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