Unfairly dismissed? Five steps to take when dealing with the CCMA

Hammond Pole Attorneys > Labour Law  > Unfairly dismissed? Five steps to take when dealing with the CCMA

Unfairly dismissed? Five steps to take when dealing with the CCMA

Blog article by Tania Jones 

Unfair dismissal is the termination of employment without substantive reasons existing and/or a fair procedure being followed – such as a disciplinary hearing – or both.  

If you feel that you have been unfairly dismissed, you may want to report the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA), an organisation with specially trained staff, to assist employees and employers with labour disputes.  

While it is never wise to ‘burn bridges’ with your employer, it is sometimes unavoidable, and you are within your rights to lodge a dispute with the CCMA if you feel it is warranted.  

Keep the following in mind, when dealing with the CCMA: 

1.Understand your rights 

While the CCMA deals with the majority of labour disputes, you can only refer a matter that is against your employment contract or the employment laws governing your employment.  

Employees are often reluctant to approach the CCMA as they fear their employer will hire attorneys to defend themselves. The CCMA attempts to prevent employers from exercising this type of unfair ‘power advantage’ over employees by not allowing any attorney in the conciliation process.  

Conciliation is when all parties meet without any attorneys or representatives so that the commissioner can determine if settlement is possible – legal aspects of the matter are not discussed. They merely look at whether there is some common ground that may result in settlement.  

Should conciliation not occur, the matter is then referred to arbitration. This is usually when the parties approach an attorney. 

2. Ensure you have a strong case 

The key to being successful is proper preparation. Ensure that for the conciliation, you are concise and clear when making any statements. 

If your case goes to arbitration, you need to provide proof that you were unfairly dismissed, i.e. gather documents and/or witness testimonies. If you use witnesses, prepare to question them as well as your employer’s witnesses. This is where an attorney can really help your case.  

3. Prepare for the process 

To prevent anxiety and being blindsided, ensure that you understand the basics of the process.  

Visit the referral process for more info and information sheets to assist you with the referral. 

You are entitled to approach an attorney before anything is submitted to the CCMA. This is advisable as it will give you the opportunity to discuss the strengths of your case before submitting anything.  

4. Be aware of timing and potential costs 

Once you get to arbitration, you will need to hire legal representation, which will cost you. A deposit is usually required upfront, which can vary from R5 000 to R15 000.   

Unfortunately, there is no clear answer as to how long a CCMA matter will take. However, since August 2021, there has been a quicker turnaround time, with some being resolved within a few months. To save as much time as possible, it is crucial that you get all the facts and documents together before proceeding to lodge a claim.  

5. Prepare yourself emotionally  

This is an emotional journey as much as a legal one. Despite any guidance given or advice provided by the CCMA and its staff, the process can still be daunting as the outcome will directly impact your livelihood.  

It is crucial that you are emotionally and financially supported when you approach the CCMA, as you may not be able to find a new job for some time. Try to ensure that you are able, at the very least, to cover your living expenses while you await UIF payments and outcome from the CCMA. You also need to be prepared for the decision to go against you. 

Emotionally, it is often helpful to have a family member or friend present when you fill in the CCMA referral form, and they can help you keep to the facts. (Download the form) 

How to keep to the facts:  

* Focus on what happened and not the emotions surrounding the dismissal. 

* Work from what happened most recently and then move to what happened before then. 

* Refer to specific dates, with specific people, where specific events took place. 

* Consider whether you want to be re-employed or merely receive compensation. If you want to be re-employed, avoid setting down anything that will sever ties and make re-employment impossible. 

After the referral form is completed, it will need to be served on the respondent (your employer) and then submitted to the CCMA.  

For more information: Tania Jones / TaniaJ@hammondpole.co.za  


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