THE CCMA’S JURISDICTION

In order for the Commission for Conciliation, Mediation and Arbitration (hereinafter referred to as the CCMA) to entertain a dispute, the party referring the matter must ensure that the CCMA has jurisdiction to hear the matter.

 The CCMA is a creature of statute, and Section 133 of the Labour Relations Act, 66 of 1995, (hereinafter referred to as the LRA), set out the disputes which the CCMA may adjudicate on.

 Section 191(a) of the LRA confers the right to hear disputes turning on unfair dismissals and unfair labour practices, subject to such referrals being filed within the prescribed time frame, and being duly completed.

 The Employee who refers an unfair dismissal dispute to the CCMA will bear the onus to prove that:

  1. A lawful employment relationship existed between the parties;

  2. The termination of that relationship by the Employer; AND

  3. that the dismissal was in terms of Section 186 of the LRA.

Should the Employee discharge the onus, the Employer will have to prove that the dismissal was both substantively and procedurally fair.

 The Commissioner will make a finding in favour of the party who, on a balance of probabilities, discharged his onus sufficiently.

 Should an Employee however fail to convince the CCMA of:

  1. his employment; or

  2. his subsequent dismissal;

 the CCMA will not have jurisdiction to entertain the matter.

The Labour Court recently confirmed that the CCMA may not, as a general rule, decide its own jurisdiction, as this is a matter to be considered by the Labour Court.

However, this does not mean that an opposing party is prevented from raising, and arguing, a point in limine which must be decided on before the matter can proceed to arbitration.

 The Commissioner will make a finding on the point in limine, called a Jurisdictional Ruling. Should the Commissioner find in favour of the opposing party, the dispute will be dismissed due to the CCMA’s lack of jurisdiction to entertain the matter.

 It is thus imperative for the Applicant to ensure that the referral falls within the CCMA’s prescribed ambit, alternatively, the Respondent must scrutinize the referral in order to ascertain if the matter can be speedily dealt with in terms of a point in limine.

Ian Mc Laren

Posted in Labour Law permalink

About Ian Mc Laren

Ian McLaren BA LLB (WITS) General Educated St Johns College, Houghton. BA LLB University of the Witwatersrand 1984 Founded McLarens September 1986. Right of Appearance High Court, October 1996. Expertise Litigation, Labour Law, Commercial Law, Family Law, Pension and Provident Funds, Customs and Excise, Wills, Deceased Estates, Trusts, Commercial Agreements, Reviewing and Drafting Government Legislation, Information Technology. Committees/ Trusts Law Society of South Africa Information Technology Committee. Trustee Verney College Educational Trust Other Transvaal Provincial colours for Practical Shooting. Third degree Black Belt JKS Karate. Photographer and motor cyclist Lectured for Continuing Legal Education on Information Technology issues.

Comments

THE CCMA’S JURISDICTION — 64 Comments

  1. I’m being dragged to the CCMA. However, my HR consultant told me that the CCMA has no jurisdiction in our matter, since we are registered with the MEIBC. Is this correct?

  2. I am being taken to the ccma for constructive dismissal, however all the employees arguments are financial, should this not be dealt with by the DOL?
    With the employees written agreement he was paid 2 days late.
    The case was logged after a double deposit was made, he refused to pay the money back so i hand delivered a Letter of Demand, he immediately went to the CCMA and cried constructive dismissal????

    • Your notes are a bit thin so comment is difficult.

      Only 20% of constructive dismissals are successful, so you are in with a good chance.

      Regards

      Ian

  3. Hi, Ian

    I am representing my member at CCMA on the 25 of Jan 12, due to alcohol which the employer cannot substantiate his dismissal by any tests.
    however trick here is the contravention of cardinal rule as photos proves their arguments so what should I do as I a hope to win this case on unfair dismissal and this comrade was his first misconduct ever since he joined the company?

    May you please help me when I ask cross questions during the proceedings which question can I impose to my client?

    I do not want to miss out this appointment as i believe there is a loop hole that we can use.

    Thanks! Aluta

    • Dear Aluta

      If the Employer can prove that Alcohol was consumed and that the employee was operating equipment (vis a factory work using and angle grinder), then dismissal is probably inevitable.

      If the employee has a problem with alcohol, there is case law to the effect that the employer should allow the employee to be rehabilitated.

      I hope that this points you in the right direction

      Regards

      Ian

  4. Hi, I was unfairly dismissed by a client and no reason for dismissal was granted. I also contacted my labour broker to provide reason of dismissal but none was given after working for over 3 years with the client. The client also informed us during the years that we will be placed permanent but none was done. Proof of minutes of meetings and founding affidavits bears reference. I had to apply at CCMA for condonation because I referred the matter late as attorneys fees are costly. What would be some of the reasons that will be raised in order to approve condonation?

  5. Hi Ian,

    Thanks a mil.

    A few months ago Mclaren Attorneys published an article regarding Labour brokers and Unfair Dismissal cases”.

    Thanks again for such a splendid article, it clarifies a lot.

  6. HI

    I have an Arbitration tomorrow. In the applicant’s request for arbitration she listed her reasons for dismissal as Unfair discrimination and vicimisation. She was progressively disciplined for poor work performance until it came to the company’s attention that she is capable of performing the duties. After every poor work performance meeting she complied for a while then went back to her old habbits. She was demoted as a result and still continued with her attitude and failed to perform. it is common knolege that this was deliberate as the employee has proven to be able to do the work.

    after 2 final written warnings I imposed a sanction of dismissal, obviously for a different incedent. During the hearing she was dishonest and she then was dismissed.

    At con the employee stated unfair discrimination and inconsistand discipline. She does not despute that she did wrong but she disputes consistancy.

    the commissioner allowed her to make application for arbitration.

    in the application she states unfair discirmination.

    Does the CCMA have jurisdiction to arbitrate this matter?

    • The CCMA’s right to hear matters is limited by statute, that is to say it may only adjudicate on issues specifically provided for in the act. See Section 191. Issues of discrimination fall outside the scope of the CCMA and fall to be heard by the Labour Court. The employee is entitled to Charaterise the nature of the dispute. If the dispute fell into the ambit of S197 “Automatically Unfair dismissal” she would be out. Given that you are dealing with a lay person the Commissioner will question her Characterisation of the dispute and advise her of the consequences. If she refuses to change he / she should reject the matter on the basis that the CCMA has no jurisdiction.

  7. Hi,

    I took my previous employer to the CCMA for Unfair Labour Practice with regards to the provision of benefits.I logged this whilst still employed at the company. I signed an employement contract that states 100% medical aid cover, they paid it in full then 10mnths down the line the company stopped without notifying me and have since been deducting the 50% from my salary. 4mnths into my employement R1000 was deducted off my gross income and the company can’t account for that, they simply say they don’t know what happened.

    Do you think I have a strong case? The case has been posponed for in Limine Arb Feb 2013, and I need to get legal representation.

    • We would need to look at the matter. It appears that a point is being taken to the effect that the CCMA has no jurisdiction to deal with the matter

  8. Good Day Ian,

    I need some advice regarding my ccma case. After I had presented and won my case I was awarded with compensation . It was ordered that it be paid out within two weeks from a specific date. That date has passed and I have not recieved a cent from the previous employer. I even had an extra copy of the order hand delivered to the employer which they signed and stamped.

    How do I proceed from here?

    Regards

  9. Hi Ian, thanks for this platform for laymans. I am en employee who has resigned (last week) due to my intolerable continued employment. Without going into too much detail, my employer [provincial Govt dept] has refused to hear my grievance. I subsequently lodged a dispute to our Bargaining Council who have also failed to respond to my dispute. Would I be entitled to refer my dispute to the CCMA? I followed all internal procedures to the T, but there was nothing forthcoming from any party. I even wrote letters to the MEC & Superintendent General with no result at all.
    Regard, Stafford

    • The bargaining council is obliged to hear the dispute if it has jurisdiction.
      If that is so the CCMA will not be able to assit you.
      Kind Regards
      McLarens

  10. Hi Ian,

    My girlfriend took her previous employer to the CCMA, and was awarded compensation the Owner of the company said that he would not pay the compensation, and that he will see her in court.

    Is compensation awarded by the CCMA enforeable by law, or will she need to go to a higher court?

    Regards

  11. Hello,

    I was locked out of work in July 2012. I filed for unfair dismissal at the CCMA. We had the first 2 hearings which were postponed by the employer under dubious ways of which I tolerated. The third hearing happened in November and the Commissioner first sought to see if the I was an employee or independent contractor as claimed by the employer. The employer first wanted me to produce certain letters of appointments, contract, pay slips. None of which I was given and was paid electronically and asked if the CCMA had jurisdiction to entertain in this matter. The commissioner first sought to see if I was an employee or an independent contractor as my employer said I was. My employer produced a cop of acontract with my signature. I immediately asked for the the original contract and excuse were made as it was my signature and I had never signed this contract. I presented my evidence that I was an employee and not an independent contractor. After the hearing i had a proper look at a copy of this contract and found that my signature was scanned and placed and i have filed a case of forgery at the commercial crimes section of the police.The commissioner said that he would give his ruling in 14 days. When I received the in limine ruling I was found to be an employee and that the CCMA had jurisdiction to entertain further. At my hearing this year, I found that he employer is bringing in condonation on the in limine ruling made by the commissioner at labour court. How do I go further as I need all the help I can get.

    • The employer is bringing an application to review the decision of the commissioner in the Labour Court.

      The application is complicated and technical and beyond the scope of a web answer.

      You should see a Attorney who specializes in Labour law as soon as possible.

      Kind Regards

      McLarens

  12. Hi Ian.

    I need your advise please. I started with this company on the 1st of March 2012 and was employed permanently. On the 4th of June 2014 after I returned from sick leave I was served with my 1st written warning for misconduct. They said they were not happy with my work. It was stated on the warning that I would be monitored closely but this never happened had a miscarriage at work shortly after that. End of July I was pregnant again. When I thought all was smooth sailing I was served with the second warning on the 28th of August 2012. It again stated I would be monitored on a weekly basis and if I don’t improve I would be dismissed. This again never happened and I was moved to another manager in September. The new manager set new KPI standards and introduced a new system .With the new system there were problems here and there but I was coping or so I thought. On the 1st December I was hospitalised. I came back to work on on the 5th of December and was still very sick. My acting manager then called me to his office and asked me to go home and not come back until I’m better. I went away and when I came back on the 11th of Dec I found an email saying I shudnt continue with my work. I should do filling and clear my desk until the company closes for holidays. I got a call on the 14th of Dec 201e ordering me to come to the office.I was still very sick and pregnant. I got to the office and there was my ex manager, acting manager and H.R telling me to resign anf get paid for 6 months because I wasn’t making the cut.they told me they were complaints but never really went into details. They said I could think about their offer. My acting manager started sending me email telling me I will get fired if I don’t accept the offer. Something seemed wrong with the whole thing. I was given 2 warning of which one had expired, I was never sent for counselling or retraining. I was never given any feed back on my progress and I’m now being told to resign? I didn’t accept the offer and my manager reminded me I wud get fired and only leave with January’s salary. I opted for a disciplinary enquiry.Remember when all of this is happening I’m still on leave. My leave ended on the 21st and I was suspended as soon as I stepped in. Served with a notice to attend an enquiry. During the enquiry my acting boss called my ex boss as a witness, she lied about retraining me but could prove it. So it was her word against mine. She admitted she never sent me for and counselling and couldn’t prove she gave me any progress report. The chairperson took this big file from my boss that was apparently evidence that I wasn’t cutting it. He never gave me a chance to see what’s in that file so I can defend myself. Based on the evidence in the file I was dismissed. The chairperson said I denied being trained and he doesn’t see why the witnesses would lie. He ignored the fact they didn’t have proof and took theor word for it. He never looked at the new KPI I had signed in November. They then told me I can appeal in writting.nothing about CCMA. After the vedict I went straight to the ccma and my case is on the 18/02/13. I want to know if you think I have a strong case. Before and after the warning there’s never been any meeting/ counselling/ feedback given. My employer doesn’t have any proof but they claim they did. Weren’t they suppose to document everything if they did it? Will I have to proof they didn’t follow the process or should they prove they did? Should I bring my health records to the con-arb to show that I was sick? Please help me with advice.

    • Here are some pointers which may assist you.
      – If the employer admits the dismissal they will have to prove that the dismissal was for a fair reason and in accordance with a fair procedure.
      – If you fail to contest a warning it will stand. Warnings are generally valid for six months
      – As an employee there is no downside to a CCMA arbitration as the CCMA very seldom awards costs against unsuccessful applicants.
      – When you go to the CCMA make sure that you have all the documents that are relevant to your case

      Kind Regards

      McLarens

  13. Hi Ian,

    I need your advice please.

    I started working for a company to which I was employed as a sales rep. Their ad stated that I would get a company car, basic plus comission. We agreed to a salary of R6000 plus commission.

    There was always screaming and swearing happening at the office. I had to record every phone call that I made to clients, and one day I went out, when I came back the have ripped out all of my work so I was never able to refer back to it. I was also almost never allowed to go out of the office, and whenever I had made an appointment, I was not allowed to go out to it either.

    My boss also made sexual comments about me and another staff member working there. The one day they had called all of us into the office, to tell us that they were going to close the office for a day, and if we agreed to getting a days “unpaid” leave, which they then subtracted money from all of our salaries. We never agreed to any of this in writing.

    I then found a client, who made a deal with us, and the invoice was for R330 000. When my salary came, I did not get paid any commission. When I asked them about it, they told me that my target was R150 000 and I did not reach target the previous month, so the R330 000 counted for the previous month also. They told me that I would get 5% commission, I then later found out that she had gone to see this same client behind my back, who bought a second item from them for the amount of R280 000 which I did not even know about, because she phoned the client behind my back, which I introduced to them.

    I then sent them a letter stating that I want my outstanding commission and we demanded two months salaries, because they made it so unbearable at work, and they simply ignored this.

    What do you think my chances are in court?

    I referred my case to the ccma and my date is coming up soon.

    Regards,
    Leanne

  14. If someone knows please help me out! Our domesitc worker said she is going away for 2 weeks and her sister would come and help me in the house! She smsed my husband and asked to pay her, her salary early….I phoned and tried to explain to her that we both don’t have yet got paid! She got cross and no one showed up….so I assumed that she is not coming back! She borrowed R800 from so I deducted it from her salary…and paid it to her account! She showed up and wanted to know why! Again I tried to explain….but she stormed off!

    Now she went to CCMA claiming unfair dismissal? But she was never dismissed and there’s no proof what so ever that she was fired! The hearing is now in July but I can’t attend as I’m far pregnant….and I have to see my doctor as I have a high risk pregnancy!

    I did send a letter stating that I can’t be there and my reason why! And also my side of the story saying her sister never showed up….and I explained with proof of payments how and when I paid her and also proof of the money she borrowed from me! She also claims that I owe her 2 weeks leave….I also have a witness that looked after my house when we went away for 2 weeks and the maid was on leave!

    I actually want to know what I can expect and does she have anything on me?

    • If you did not dismiss your maid she has no claim.
      The CCMA rules provide that if the dismissal is in dispute the person claiming dismissal must start first.
      If you cannot attend you will need a doctors note. You should appoint an attorney to help you.

      Regards
      McLarens

  15. Ian, my husband is blind and he brought a case of unfair labour practice relating to a job advertisement and promotion to the CCMA. The respondent raised a point in limine based on the questionable assumption that because he is disabled, it is automatically a case of discrimination. The commissioner ruled in favour of the respondent, denying my husband a request for representation, accepting mere statements by the employer’s representative as evidents, and he was not even properly notified 7 days beforehand. He wants to take the CCMA decision on review to the labour court – what is caselaw and points in law that supports his case?

    • It is the Applicants right to characterize the dispute. If it is an issue of discrimination it is should be before the labour court and not the CCMA. I suspect the issue may be in the way your husband formulated his complaint to the CCMA.
      It is hard to advise further unless we look at the matter.
      If you email me a copy of the Form 7.11 I may be able to help

      Regards

      Ian

  16. 7 staff members including management were dismissed by one chairperson on abuse of password , Each staff member had a different charge . Is it acceptable for one chairperson to chair seven different hearings?

  17. Hi Ian,

    I was dismissed on the 15 July 2013, for gross neglegence. However the incident occured at the begining of this year.

    I was charged by my Operations Manager, she reported the matter to my Human Resaurce manager, and he drafted the charges accordingly.

    The same Human Resuarce manager was the preciding officer on my hearing. On numerious occassions the preciding officer stoped me when I was cross examining the company witnesses.

    Do you think the company followed the correct procedures to deal with this cane? Please advise.

    • A dismissal should be in accordance with a fair procedure and for a fair reason.
      It appears that there is a procedural defect in your dismissal.
      The CCMA also has a discretion as to the amount of the award. ie in your case from 0 to 12 months.
      If the dismissal was a fair reason compensation in your case would probably be from one to three months
      Regards
      McLarens

      • Thanks Ian,

        I have sent my appeal to the same Human resuarce manager who inturn was the preciding officer in my hearing. He even failed to furnish me with the minutes of the hearing.

        On Monday 22 July 2013 I take the matter up to CCMA, hopefully it will be settled as soon as possible.

        How long does CCMA take to proceed with the appeal?

        Regards
        Emmanuel Mkhize

          • Hie Ian Iam foreign citzen with work permit.I worked for my previous employer for 1year six months.he never regster me and i decide to leave i didnt receive my money for the last fortnigth when i was ther up to now he doesnt want to pay me. You think CCMA will help me?

          • The CCMA will only deal with remuneration issues when they are coupled to an unfair labour practice.
            You need to deal with the department of manpower or an Attorney
            Regards
            McLarens

          • Hi Ian, I have been informed that the appeal hearing will be on the 29 July 2013. This time around someone from “XXXX” has been elected to chair the appeal hearing.

            They told me this person will be a neutral presiding officer, however knowing my human resource management as well as my top management I don’t trust them, based on what transpired on the initial hearing.

            Could you please advise me on what do I need to do to regain my job.

            Your assistance will be greatly appreciated.

            Regards
            Emmanuel Mkhize

          • Hi Emanuel
            Please note we have replaced the Labour consultant name with “XXXX”

            The writing is on the wall. The “XXXX” Company has been hired to ensure that you go away. I doubt that you will be able to show that they, even if it is so.
            We cannot help you further, you need to consult with an attorney
            Regards
            McLarens

  18. Hi Ian . I was dismissed, matter with CCMA. Salaried individual worked a 5 day a week . I had 60 days annual leave due to me, and only paid for 40 days. My appointment letter states that I am entitled to 20 leave days per year; that I am allowed to accumulate leave maximum 5 days per year- maximum 40 days. We have an annual 8 day shutdown, and I was always on standby. Any request for leave was generally turned down . The maximum leave I took was 14 days in Dec 2011- Jan 2012 against a motivation to my boss . The company never formally communicated that I had accumulated that much leave (besides salary slip) and no record was kept of the reason why i did not take leave. Do I have any recourse against the company or to I go to Labour Dept ? I did a bit of case law research Jardine v Tongaat-Hulett Sugar Limited (D849/02) [2003] ZALC 33 (23 April 2003) but this is jargon to me. Any advises will be much appreaciated on what should I do? Thanks and God Bless

    • Firstly the CCMA will only consider remuneration claims if they are coupled to an unfair labour practice
      Second Department of Labour always has jurisdiction regarding remuneration issue as does labour court, Magistrates court and high court.
      Third, to my knowledge in the absence of a company policy you can accumulate leave. If there is such a policy the company has no duty to tell you to take the leave, so you sit with the problem

      Regards
      McLarens

      • Hi Ian,

        Today was my appeal hearing at my work place and the chairman’s finding was that the company did not follow the correct procedures on the hearing, my dismissal was procedurally incorrect.

        They told me the case will be started from the begining again. What is your take on this decision.

        Regards Emmanuel Mkhize

  19. hi ian
    i was chased of site coz i didnt shave im a construction worker i have been working for this compeny for 3 years and bout 6 months ago th estaff came to me and appointed me as the shop stewerd and we asked the employer to isue us with health and safty equipment as to the the kinda work we do he did not listen or came back to us them i phoned the department of labour they came and sorted it out we have spoken to him bout our uif and also workers contracs he doesnt wane listen to what we have to say after he chased me of sight i went to ccma and filed a unfair dismisal and our hearing is on the 28 at ccma port elizabeth i just wanted to ask is there anything he as employer can do to cover himself and to make me look like the bad apple in the bag please coz im realy stressing out about it and i also have a 19 month old baby boy now i cant pay his child suport and if possible can u tel me more or les how long a matter like this would take to be settled thank u very much

    • Hi Nico
      Your case sounds very strange. If indeed you were fired because you didn’t shave there would have to be a Policy to that effect and a long list of warnings.

      We suspect that this has something to do with your Union activity

      Regards

      McLarens

  20. I started at this new company in May 2013 with the knowledge of they were going to make me permanent after the three month probation is over, however in my second month of probation i found out that i have been expecting and told the mamanger that appointed me straight away my situation. At first he did not have a problem with or so it seem untill he called me in three weeks after that saying that he wont be able to make me permanent anymore due to me being expecting and that he will have to employ someone else in my position which will leave me basicaly without a job when I am done with maternity leave.I asked him on what grounds is he not renewing my contract because he has never called me in to say that he is unsatisfied with anything that im doing in my workstation, he said that its nothing that i have done wrong in my work, he just feels like he has been mislead by me not disclosing my pregnancy.He offered me a 2month fix term contract till i have to go on maternity but there is no job to return to and i cannopt afford not to have a job seeing that i resigned from a permanenet position at my previous company to come work for them thinking that i had better growth here. Now i want to know i want to take him to the CCMA do i have a strong case him or am i just going to waste my time because i want to lay a dispute against him for pregnancy discrmination.

    • If it is found that your employment was terminated as a result of your pregnancy the dismissal will be considered to be automatically unfair. The court may in its discretion order reinstatement or compensation of up to 24 month wages.

      Regards
      McLarens

  21. Good Day. I’ve got a case at Bargaining Council next week. Its against my company for unfair dismissal. We had a hearing at work and they dismissed me for incapacity. I got injured at work in Feb 2012 and was still at work. I had a major spine operation in Nov 2012. I’m still in a lot of pain and the doctor has booked me off until I get better. I cannot sit and stand for long periods. They never even medically board me off. My union is fighting the case on my behalf. Have I got a strong case. What can I expect at the case. My doctor can’t give a date when I can go back to work. He just puts me off every month. Pls help. Thanks

    • Where you are unable to render service because of a medical incapacity, the company is entitled to terminate your services for that reason. However the company is obliged to follow a process that is fair that allows you input prior to making their final decision.

      Regards

      McLarens

  22. Hello pls help. I have been ill for a while and when i noticed my condition get worse i requested a meeting dated with my employer with reasons s, meeting dated need transpired and employer questioned me on taking too much time off and advised i did not update him on my condition get i replied confirming him that i am waiting to have the meeting dated i requested . In December during a break at our board meeting dated i called him aside and advised him that my condition was getting worse and enquired if i could apply to the company ipp fund for time of to recover and he confirmed i could apply. In December i was admitted prior to taking leave i applied for when i got back in January there was a backlog of work i had to handle and i then got ill again and was admitted in hospital again and on return i was loaded with work again . By this time the employer questioned issue me with farmers for when ipp disability claim, a few weeksvlater i was admitted again and this time while in hospital received an official letter from the employer stating that he is starting a paper trail and he confirmed our agreement to apply for ipp but included permanent disability that was never discussed and that i would resign if the insurance company did not grant same .

    On my return from hospital i responded pointing out the issues of concern with no response .

    I attended a resent board meeting over Skype as i am still not well and my employer stated that i was supposed to resign again and i disagreed he then confirmed that i would be dismissed for incapacity , this boardmeeting was recorded for minute purposes. 2 day’s ago i received an a letter saying that i would have to give the company did reasons not to dismiss which i think in unfair as i have not done anything wrong to be dismissed and if the company did assisted me following up with the insurer there would be mo cost tothr company did. Because the conversation i had .ws different to the letter received i asked for a copy of the minutes and recording and was told recording was deleted eventhough the minutes where not distributed yet. I referred the matter to coma as unfair labour practise and discrimination and now recevived a letter from my employer that eventhough he has received ccma documentation i was out of the time limit andhe insists on a response I to me giving reasons why my serviced should not be terminated. What should i do is this fair treatment .

    Pls help the stress is making my condition worse .

    Regards
    Sam

    • The CCMA gives a person 30 days from the date on which a dispute arose to refer the matter. If the Employer alleges that you are out of time he will ultimately have to prove this. If you have a look at the CCMA referral form, it asks you to stipulate “THE DATE THE DISPUTE AROSE”. Check whether the matter was referred to the CCMA within 30 days of the date set out in your refferal form. If the referral is in time, the best thing would be to proceed with the matter. It is also a possibility that should you be unsuccesful in the unfair labour practice matter and your services are terminated by the Employer, a seperate unfair dismissal dispute can be referred to the CCMA.

  23. Hi, I am representing an employer on a CCMA Matter. There are 10 unsuccesful job applicants that have referred their matter as unfair discrimination. There were 40 vacancies advertised, 350 applicants and these 10 were not appointed. Amongst all the applicants there were some long serving temporary staff employed through a labour broker. Some of the successful applicants were from this group while others were not. Does the CCMA have jurisdiction over this matter?

  24. Hi Ian, thank you for your reply but still I feel so lost because how do i prove all of this there is no way that the manager will admit this is all pregnancy related, the only thing that i have as proof is a recording and that does not work, i cannot even lodge a grievance as we do not have a HR department and the manager that appointed me handles most of the HR related business, i still want to take this matter to the CCMA but what puts me down is the fact that its going to be his word against mine, can you give me some advise please?

  25. my father passed away last year and i was staying him as he seperated to our mother who they were still married to ,my mom was staying with my younger brother,lately my father had a girlfriend before he died after his death the company said my father had a stand alone scheme at wich means they are the ones who will nominate and they said they will pay girlfriend and my mother 50/50 and we are not included as the children and my father left me an affidavit stating that i’m his heir to his estate and mom even has a letter of authority,but still company refuse to help i even took the matter to pension fund ajudicator still no help,can u give advice

  26. I was given a final warning upon my boss saying am incompetent in September 2013, when I joined this company, I found the Books not balancing and used my skills to make sure the books were up to date. When ever I make mistakes they always threatened me that I was going to loose my job. I went on maternity leave with that final written warning in November 2013 ,when I came back from leave in march, I just worked for 2 weeks and I was suspended because there was a recon I was doing which could not balance. Then the hearing was conducted and I was fired just like that upon being suspended for 2 days like a thief and when I went for hearing, I found someone else siting on my Desk working already. I have taken the case to ccma and my question is ,do i have a strong case and does the warning still stands when am on maternity leave or they only count when am working. When I joined this company ,no one trained me to use the system r how to go about with the work. I used my skills since I was using the same system were I was working. Even upon returning from maternity leave, I found a lot of errors and showed my Boss which he even signed for and we corrected. When I made an error with one recon I was fired.

    Please advise.

  27. The CCMA must hear your case De Novo, which means that your employer must establish that your dismissal was procedurally and substantively fair. ( A fair procedure and a fair reason). The written warning is a hurdle which you may find difficult to get past as it forms part of your disciplinary record and may not be challenged at this time. In future if you receive any warning that you feel is unjustified you need to either challenge the warning internally or refer the matter to the CCMA. That said there is no down side to you pursuing your case in the CCMA as costs orders are almost never awarded against applicants in unfair dismissal cases.

    Kind Regards

    Ian McLaren

  28. Hi Ian-.my staff member and I were dismissed unfairly with no fair reason. CCMA reinstated my staff member with 15 months backpay and all her arrear benefits intact. My company realising that they have no case against me after consulting senior council have made contact with my attorney and now want to settle with me by paying me the maximum of twelve months salary and no reinstatement. Should I not receive the exact same treatment/award as my staff member as she was more guilty of the offence than I. or should i continue with my CCMA case?

  29. Hi
    My previous employer forged ( copied and pasted ) my signature on my offer letter of appointment. I requested on numerous occasions from HR to find out what’s going on as I only became aware of it when I found my signature was not as agreed during my interview.
    I eventually resigned on 31 August 2014 and joined a new employer.

    I want to know what steps I can take against my previous employer and if I have grounds for a civil claim as well.
    Can anyone please advise me as I don’t earn enough money to afford an attorney

  30. Hi Ian,
    We have been summoned to appear before a commissioner for the “Unfair Dismissal” of two workers, these individual were never dismissed and yesterday I personally went to the CCMA offices and explained this to the acting head where after he called one of the employees and told him to report for duty today and this gentleman point-blank refused to come back to work, then the commissioner said we have to still appear, when I read your article about the jurisdiction of the CCMA this falls outside their jurisdiction as I understood this to be absconding, in another article it states that “forward written submissions to the CCMA and the applicant in advance of the conciliation hearing, following CCMA Rule 19″ the reason for me not being able to attend is I live in KZN and this matter arose in Benoni Gauteng and I flew to JHB for two other meetings and thought by going to the CCMA and explain that the dismissal never took place they will at least see that there is obviously another agenda to these two employees’ complaint. Please advise what the consequences will be if we do not appear and what is Rule 19?

    • Once a dismissal is established the onus is on the employer to show that the dismissal was procedurally and substantively fair. Unfortunately you will need to attend the Arbitration to make sure that you establish that there was no dismissal. You may want to ask the commissioner to award you costs if it is obvious that the matter is frivolous

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