Weekly Tips And Advise
Can the CCMA hear my case?
A big problem often encountered at the CCMA is “jurisdiction”. This means whether the CCMA can hear your case or not. Let’s look at an example to understand jurisdiction a little better. Sandy is working in admin at a company. Sandy feels that she has been unfairly dismissed for a misconduct that she did not commit. The real reason for her dismissal according to Sandy is because the company does not want to promote her and as a result found a way to dismiss her. So she wants to go to the CCMA to lodge an unfair dismissal case.
At the hearing Sandy is surprised to find out that the CCMA cannot hear her case because it does not have “jurisdiction”. In practice, there are 3 most common reasons why this situation arises:
- An internal dispute resolution procedure of the employer has not been exhausted,
- The dispute is covered by a bargaining council and not by the CCMA,
- The applicant is not an employee
Let’s look at each scenario from the example of Sandy so we can understand what to do if we are faced in a similar situation:
- An internal dispute resolution procedure has not been exhausted
- This means that one of the company’s internal procedures regarding Sandy’s dismissal has not been finalized yet.
- This makes her dismissal not final.
- If the decision is not final, it is a bit premature to go to the CCMA.
- In order to avoid this, Sandy should ask her HR if all the internal procedures regarding her dismissal has been finalized.
- Ideally, she should have this in writing. Then if her employer raises this point at the CCMA, she will be able to produce this as proof that the hearing should go ahead.
- The dispute is covered by a bargaining council and not by the CCMA.
- This means that the CCMA is not the right body to hear Sandy’s case because her employer is part of a specific organization that hears dismissal cases for her industry.
- In order to avoid this, Sandy should ask her HR whether the company is part of a bargaining council. If so, Sandy should immediately obtain the details of that bargaining council and lodge her case.
- If Sandy goes to the CCMA, they can also refer her to the bargaining council.
- However this may be a waste of her time since she could get the information upfront from the employer.
- The applicant is not an employee.
- This means that Sandy was working for the company as an independent contractor and not as a full time employee.
- Independent contractors’ rights are more limited than employee rights.
- In order to avoid this, Sandy should check her employment contract very carefully.
- It is advisable to seek the assistance of a specialist Labour lawyer in this scenario as these situations can be quite tricky.
In summary, always plan your case before you go to the CCMA. Jurisdictional points can be used against you. They prolong the dispute and sometimes even prevent your matter from being heard.