CCMA or Labour Court – that is the question

CCMA or Labour Court – that is the question

Written by Dave Lake

There can be confusion around what kind of labour disputes should be referred to the CCMA or to the Labour Court. Below are some simple guidelines for which disputes should be referred to which body.

What kind of disputes must be referred for arbitration at the CCMA if not resolved at conciliation?

1. Misconduct: A dismissal dispute where the reason for dismissal was misconduct.
2. Incapacity: A dismissal dispute where the reason for dismissal was incapacity (poor work performance, ill-health, or injury).
3. A dismissal dispute where the employee doesn’t know the reason for dismissal.
4. An unfair labour practice dispute.
5. A constructive dismissal dispute.
6. Non-renewal of temporary contract: A dismissal dispute where the employee alleges that it was a dismissal because you failed to renew a contract when the employee had a reasonable expectation the contract would be renewed.

What kind of disputes must be referred to the Labour Court if not resolved at conciliation?

1. Retrenchment: A dismissal dispute where the reason for dismissal was operational requirements (retrenchment). EXCEPTION: If only one employee is retrenched, he/she can choose to refer the dispute for arbitration at the CCMA instead of going to the Labour Court. It’s the employee’s choice.
2. Automatically unfair dismissal: A dismissal dispute where the employee alleges discrimination (or any other reason which would make the dismissal automatically unfair, e.g., an employee was dismissed because she was pregnant or taking part in a protected strike or protest action). Any other dismissal where the employer directly or indirectly discriminated against an employee on any arbitrary such as race, gender, age, disability, etc.
3. Strike action: A dismissal dispute where the employee was dismissed for participating in an unprotected (illegal) strike.
4. Closed shop dismissal: A dismissal dispute where the employee refused to join, was refused membership, or was expelled from a trade union, which is party to a closed shop agreement with the employer. Note: this is a very unusual dispute as it only applies to where there is a closed shop agreement i.e., where the employer will only employ members of that trade union that it has a closed shop agreement with.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)