We all desperately wish that we can ignore a notification from the CCMA because one of our employees, who by the way was legally and procedurally dismissed, has decided that the term CCMA refers to “Come Come Money Available”!
We are here today to advice you to PLEASE not ignore the CCMA. They will gladly take your money and hand it to that employee!
The first thing that we want to discuss is, why it is important to act on any communication from the CCMA.
As indicated above, an employee will almost always refer a matter to the CCMA, whether he / she was incorrect in their actions or whether they transgressed so severely that you had no alternative but to dismiss. The CCMA, as we all know, has been known for being bias against employers and in favour of employee claims.
When you receive a 7.11 notification, you can be assured that the case will be set down for Conciliation and / or Arbitration and you will need to tend to the same. If this is simply ignored or you do not wish to spend more money on this employee, we can assure you, that you will be spending tenfold on this matter.
Let’s break it down for you all – the CCMA is there to conciliate a resolution in terms of what the employee feels e.g. that they were unfairly treated or dismissed. You as the employer who dismissed this employee are required to convince the Commissioner that you followed both procedural and substantive measures. Procedural being, that you gave the employee an opportunity to defend him- / herself against the allegations and Substantively, that you had no alternative but to dismiss or hand down the sanction which you did (e.g. the sanction justifies the outcome).
And yes, it is your obligation to convince the Commissioner that you did nothing wrong. The responsibility of a commissioner is then to convince you that you should settle the matter by throwing money at the problem – to go away!
Yes you read correctly, they advise you for the benefit of all and not wasting your money further by coming back for Arbitration, that you should settle and just pay the employee something to go away, like a nuisance pay.
Some of our clients do not mind this payment as it means they do not have to see the employee ever again however, we do not settle if you did nothing wrong and why should you?
Getting back to the point – if you do not attend or send us to attend on your behalf, then the commissioners sees it as disrespectful and will make a default judgement against you! This could vary in terms of amounts or instructions – it could be 8 months’ salary or reinstatement, etc. It is truly based on how the commissioner feels on the day and what story the employee told them.
In order for you to then challenge the award against you, would be a high amount of costs as it could be for lawyers, Labour Court referral, etc.
It is best that you therefore do not question or disregard any communication from the CCMA at any time.
You will now ask – what if I do not get the notice or did not know I had to show up?
Well, there lies the differentiation, and we can thus challenge the award with proof and evidence that we were never informed.
Remember that the CCMA rules clearly state that you as the employer must be informed against signature or notice of deliver that they referred the matter to the CCMA. A sms is normally forwarded by the CCMA to inform all parties that the case has been activated or when it is set down (time and date).
How to proof you did not receive notification
The referral form known as a 7.11 must be provided to the employer against signature or with read receipt, registered post, etc. It must be proven by the applicant that the document was served.
If it was forwarded via email, then the email address must be 100% correct and a read receipt must be provided for the case to go forward. Where this is not present, the CCMA cannot continue with the case or cannot enforce the award.
What to do if you have an award against your company or yourself
There are two remedies however both will require legal knowledge in order to properly make use of.
The first remedy would be the Company can apply to the CCMA for a recission of judgment in which you request that the CCMA rescind the default award made against your company and for the arbitration to begin de novo. However, this has certain requirements that the company will need to met in order for them to succeed.
Specifically, the company will need to show that there was no wilful default on their part, secondly that there was a good and valid reason for their non-compliance with the CCMA notices (aka did not receive the information due to incorrect email for example) and lastly that there is a reasonable possibility that they will succeed at the CCMA should the matter be heard de novo.
The second remedy is to make an application to the Labour Court for a review, this however is a lengthy, expensive prospect that should only be embarked
