The Commission for Conciliation, Mediation and Arbitration (“CCMA”) is the first port of call for the majority of disputes concerning the employment relationship and serves not only as a forum aimed at facilitating amicable and expeditious resolutions to employment disputes but also as a court of first instance for adversarial proceedings arising between, amongst others, employers, and current or former employees.
As with any legal forum, proceedings in the CCMA are regulated by a set of governing Rules (“the CCMA Rules”) which determine, inter alia, the manner in which proceedings must be brought before the CCMA, and the timelines to be followed by litigants in, for example, initiating various types of proceedings, filing documents, and convening pre-arbitration conferences. Matters before the CCMA live and die pursuant to the litigants’ compliance with the CCMA Rules and many a valid claim or defence has floundered by reason of the parties’ failure to adhere strictly to the provisions of these Rules.
Accordingly, it is imperative for parties who are embroiled in CCMA litigation to be aware of, and intimately acquainted with, the CCMA Rules, especially as in conciliation proceedings (and certain arbitration proceedings) litigants are required to represent themselves (as opposed to instructing attorneys to do so on their behalf).
On 21 April 2023, the CCMA published various amendments to the CCMA Rules which came into effect on 24 April 2023. This article will discuss the most important of these amendments.
Service and filing of CCMA documents
It is a perennial gripe of those litigating in the CCMA that the prescribed modes of service of documents are severely archaic, and burdensome, especially as the modes of service and filing historically prescribed by the CCMA Rules were limited to filing by hand or by fax.
Significantly, the CCMA Rules (Rules 2(3) and 7(2)) have now been amended to exclude fax as a prescribed manner of filing. The chief manner of communication with the CCMA (whether in order to file documents or otherwise) is now via the CCMA’s official electronic referral portal (“the Portal”).
The ancillary (yet important) effects of the above amendments include (a) the allowance of condonation applications to be initiated via the Portal (Rule 9(2A)); and (b) the allowance of the referral of disputes to be affected via the Portal (Rules 10(1) and 18(1)).
The pre-amendment version of the CCMA Rules required an employee who referred a dispute to the CCMA outside of the timeframe allowed for such referrals (e.g., more than 30 days after the date of dismissal in the event of an unfair dismissal referral), to attach to the referral document his/her application for condonation (Rule 10(2)(b)).
Whilst this portion of the CCMA Rules has remained unaffected by the amendments, the CCMA has elected to insert a new Rule 10(3) which allows the CCMA to decide, in the event of an employee failing to attach an application for condonation to their referral documents, whether the issue of condonation will be decided at a hearing or via the filing of written submissions.
The intention behind the insertion of Rule 10(3) is to allow for arbitration proceedings to proceed without unnecessary delay and being burdened by the inevitable interlocutory applications seeking condonation for the late referral of a dispute (which in all cases must be determined prior to the arbitration proper).
Postponement of proceedings
The postponement of arbitration proceedings is governed by Rule 23 which, amongst other things, dictates that a commissioner must postpone an arbitration in circumstances where (a) both parties have agreed to such a postponement; and further (b) where the parties have notified the CCMA in writing of their agreement to postpone at least 7 days prior to the set down date of the arbitration (Rule 23(2)). In short, a CCMA/commissioner was previously obliged to postpone an arbitration should the above criteria have been met.
The provisions of Rule 23(2) have been amended by the substitution of the word “must” with “may”. Whilst, on the face of it, the amendment seems comparatively minor, it is, in practice, a significant amendment which will substantially impact how matters are litigated in the CCMA. The effect of the amendment is that the CCMA/commissioners are no longer duty-bound to postpone an arbitration in the event of the parties agreeing thereto, and this agreement being conveyed to the CCMA within 7 days of the arbitration. As such, the CCMA/commissioners may refuse the postponement sought by the parties or may require more from the parties (such as, for example, written submissions or a formal application for postponement under Rule 31) before it would be willing to grant the postponement sought.
This change in the CCMA’s attitude towards agreed postponements has been accurately captured in the newly inserted Rule 23(5) which records that “There is no right to postponement and arbitration will proceed as scheduled unless the Commission or commissioner notifies the parties that the matter has been postponed”.
Therefore, postponements in circumstances where both parties have agreed to it, and where such agreement has been timeously communicated to the CCMA, are no longer a foregone conclusion and postponements will be more difficult to secure in the future.
Attendance at arbitration
Rule 30(1) of the CCMA Rules states that where a party to the dispute fails to attend (or be represented) at any arbitration proceedings:
- in circumstances where the absent party was the one who referred the dispute to the CCMA (i.e., the employee), the commissioner may dismiss the matter by issuing a written ruling to this effect; and
- in circumstances where the absent party is not the party who referred the dispute (i.e., the employer) the commissioner may either (a) proceed in the absence of that party; or (b) postpone the proceedings to a later date.
Rule 30(1) has been amended to impose an obligation on the commissioner to first determine the reason for a referring party’s absence before proceeding to postpone the matter. Only where the commissioner determines that there is a “good reason” for such absence will he/she allow a postponement.
Where the commissioner believes that that the referring party’s absence is, on the face of it, willful or unexplained, or where the commissioner does not accept the reason provided, he/she may remove the matter from the roll.
On this score, Rule 31C has been introduced which regulates the manner in which matters which have been removed from the roll in the circumstances mentioned above, may be re-enrolled by the referring party. To do so, the relevant party must within 14 days of becoming aware of the removal, request the CCMA, via the completion and submission of a written Request for Re-Enrolment form (“the Form”), to re-enroll the arbitration. The Form must also be served on the other party to the dispute who will be afforded 7 days from the receipt of the Form to file papers opposing the re-enrollment should it choose to do so. Once in receipt of the Form and any written opposition, the relevant commissioner will decide whether to allow the re-enrolment or not. The commissioner must deliver his/her decision in this regard to the parties within 14 days of receipt of the opposing party’s papers, or upon the expiry of the 7-day period afforded to the opposing party to oppose the application for re-enrolment (where it fails to do so).
Importantly, and in accordance with the newly minted Rule 32(2), the need for a formal application to vary or rescind an arbitration award (or rulings) does not apply to the CCMA’s decision to remove a matter from the roll in accordance with Rule 30. As such, a referring party will not be required to apply for the rescission of the commissioner’s decision to remove the matter from the roll (as in previous cases) and the party seeking to re-enroll an arbitration which was removed from the roll in terms of Rule 30, simply needs to follow the procedure set out in Rule 31C.
Closure of the CCMA
The previous Rule 3(2) required that when CCMA timelines are calculated (in respect of, inter alia, the bringing of claims or the filing of documents), the last day of the relevant period must be excluded in such calculations where this day falls on a Saturday, Sunday, public holiday or during the period between 16 December and 7 January.
The amended CCMA Rules no longer contain provisions referring to the exclusion of the period between 16 December and 7 January which indicates that, when calculating the time periods for complying with any aspect of the CCMA Rules, these dates must be factored in.
For further assistance and/or advice on the issue of the CCMA Rules, CCMA practice or the amended CCMA Rules, please do not hesitate to engage with our team of attorneys who will happily assist.