Article by Adelaid Mabusela
When it comes to CCMA matters, disputes can arise from a variety of sources. In this article, we examine when such disputes arise.
Section 23 of the Constitution of 1996 (“the Constitution”) provides for the protection and regulation of labour relations between employees and employers (labour rights). Amongst the rights specified in section 23 (1) of the Constitution is the right to the implementation of fair labour practices.
The Labour Relations Act, No. 6 of 1995 (“LRA”) gives effect to section 23 of the Constitution. Whilst the Basic Conditions of Employment Act 75 of 1997 (BCEA) further establishes the rights of employees by giving effect to the right to fair labour practices referred to in section 23(1) of the Constitution (by establishing and making provision for the regulation of basic conditions of employment).
The rights as enshrined in the LRA and BCEA are not a closed list of rights. The respective rights are entrenched in the Constitution, Common Law and developed through precedence and legislation.
When approaching labour related disputes, it is key to note that, there is a distinction between unfair dismissal and unfair labour practices. In terms of section 186 of the LRA, it states that:
“Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving –
(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;
(b) unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee;
(c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and
(d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act No. 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.”
Therefore, when dealing with labour disputes, it is essential to identify the distinction between unfair dismissal and an unfair labour practice. An unfair labour practice refers to the conduct of the employer towards the employee during the period of employment. Whereas an unfair dismissal involves the way the employer dismissed the employee and whether that conduct was unlawful.
Employers and employees in South Africa are protected by the LRA and BCEA, as such, when either party infringes a right, a referral to the Commission for Conciliation, Mediation and Arbitration (CCMA) on Unfair Labour Practices and Unfair Labour Dismissal may be necessary.
Before initiating CCMA proceedings, if there is a specified method for dispute resolution in terms of the employment contract or the set policies of your workplace, the employee must first exhaust those internal procedures. Once these measures have been exhausted, an employee must file a referral to refer the dispute to the CCMA.
For unfair dismissal, it must be filed within 30 days of the date of dismissal, and for unfair labour practice within 90 days of the date of the act or omission, which is allegedly unfair, or within 90 days of the time that the unfair act or omission occurred.
It is possible for the employee to unfairly dismissed or subjected to unfair labour practices, be dismissed if they don’t refer a dispute in the prescribed timelines. In order to remedy the delay, the employee will have to submit an application for condonation to the Commissioner of the CCMA in order to excuse the non-compliance.
The consideration of applications for Condonation has been dealt with by the Courts, where in Melane v Santam 1962 (4) SA 531 at 532 C – F Holmes JA, the following was held:
“In deciding whether sufficient cause has been shown, the basic principle is that the court has a discretion to be exercised judicially upon a consideration of all the facts and, in essence, is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefore, the prospects of success, and the importance of the case. Ordinarily these facts are interrelated; they are not individually decisive, for that would be a piecemeal approach incompatible with true discretion…”
As such, for a condition application, the Commissioner will consider the degree or extent of the lateness of the referral, the reason for the lateness, the prospects of success on the merits, and the prejudice to the other party.
The Commissioner of the CCMA strictly adheres to the timeline and does not grant condonation applications merely on request. The applicant is required to demonstrate a compelling good cause and submit an explanation that is considered sufficient to excuse the default.
Whenever there is uncertainty or potential dispute it is vital that an employee or employer seeks legal advice as non-compliance with regards to the category of the labour right(s) infringed (unfair labour practice v unfair dismissal) and on the set CCMA processes.
It is further important that as soon as a dispute arises that an employee or employer should be cautious of the timelines available for referral of a dispute, as failure to adhere to the prescribed timeliness can be detrimental to their dispute notwithstanding the merits of their case.
For additional information, please contact:
Sydwell Mketsu (Director) | 083 397 7473 | sydwell@mketsu.africa
Adelaid Mabusela (Associate) | 012 321 0149| associate@mketsu.africa
