How to refer an unfair dismissal to the CCMA

The Commission for Conciliation, Mediation and Arbitration (CCMA) resolves disputes between workers and employers. If you believe your employer dismissed you unfairly, you can refer the dispute yourself. The CCMA first tries to settle it at a conciliation meeting. If that fails, the dispute can go to arbitration, where a commissioner decides it.

Check the time limit first

The Labour Relations Act gives you 30 days to refer a dismissal dispute:

• from the date of your dismissal, or
• if it is later, from the date your employer made its final decision to dismiss you or to uphold the dismissal, for example after an internal appeal.

If your employer gave you notice, you can refer the dispute as soon as you receive the notice. Don’t wait for the last day.

Other unfair treatment at work that isn’t a dismissal is called an unfair labour practice. It includes unfair conduct about promotion, demotion, probation, training or benefits, and an unfair suspension or other disciplinary action short of dismissal. You have 90 days to refer that, from the date it happened or the date you found out about it.

If you are late

The CCMA can allow a late referral if you show good cause. Attach an application for condonation to your referral. The CCMA’s rules say it must explain:

• how late you are,
• why you are late,
• your prospects of succeeding with your case,
• any prejudice to the employer, and
• any other relevant factors.

The CCMA’s rules say the CCMA may help you with a condonation application, so ask a CCMA office if you get stuck.

The CCMA or a bargaining council

If you and your employer fall within the registered scope of a bargaining council, the law says you refer the dispute to that council, not to the CCMA. Ask your trade union, your employer’s HR office or the CCMA whether a council covers your workplace. A council has its own forms and rules.

How to refer the dispute

1. Fill in LRA Form 7.11, the referral form. You can complete it on the CCMA’s online referral platform or the CCMA’s #CCMAConnect app, which are listed in the CCMA’s rules.
2. Serve a copy on your employer. You can hand it to a responsible person at your workplace, email or fax it, or send it by registered post.
3. Keep proof that you served it, such as a receipt signed by the person who took it, the registered post slip or the fax report. If you refer the dispute by any way other than the CCMA’s online platform, attach this proof to your referral.
4. File the referral with the CCMA, online or at the CCMA office in the region where the dispute arose. The CCMA accepts emailed documents at any time, and its offices are open on weekdays.
5. If you are late, attach the condonation application.

Conciliation

The CCMA must tell you and your employer about the conciliation meeting, in writing, at least 14 days before it takes place, unless you both agree to less. A commissioner tries to resolve the dispute within 30 days of receiving your referral, unless you both agree to more time.

• Who can represent you: at conciliation, you speak for yourself or a member or official of your registered trade union represents you. Lawyers can’t represent anyone at conciliation.
• It is private: conciliation is confidential, and no one may refer to what was said there in later proceedings, unless both sides agree in writing.
• If you don’t settle, the commissioner issues a certificate that the dispute is unresolved.

After conciliation: arbitration or the Labour Court

Where the dispute goes next depends on the reason for your dismissal.

If you were the only employee retrenched, you can choose arbitration or the Labour Court. For a dismissal related to probation, the arbitration starts straight after conciliation.

At arbitration

• You must prove that you were dismissed. Your employer must then prove that the dismissal was fair.
• Lawyers: if the dismissal was about your conduct or capacity, no one may use a lawyer unless the commissioner and the other side agree, or the commissioner decides it would be unreasonable to expect a party to manage without one.
• Attend: if you referred the dispute and don’t come to the arbitration, the commissioner may dismiss your case.
• What the commissioner can order: if the dismissal was unfair, the commissioner can order your employer to reinstate you, re-employ you, or pay you compensation.

Keep your documents

Keep copies of your contract, payslips, letters from your employer, notices of any disciplinary hearing and its outcome, and the dismissal letter. Write down dates and what happened while you still remember.

While you wait

You can claim UIF unemployment benefits after a dismissal. See how to claim UIF and register as a work seeker on ESSA.

Stay safe

• You can refer a dispute and attend conciliation yourself, without paying anyone.
• The CCMA’s rules say that at the CCMA, only a lawyer or a candidate attorney may charge a fee to represent you. A union official, a co-worker or anyone else who represents you may not charge you a fee.