Important directives to access the CCMA during the lockdown

The Commission for Conciliation, Mediation and Arbitration (CCMA) has released a set of directives on how access to the CCMA will apply with effect from 11 May 2020 until the CCMA’s  operations are normalised under the National Disaster Management Act.

The below directives must be read together with the Rules for the Conduct of Proceedings before the CCMA (CCMA Rules) and all applicable statutes.

Can you refer disputes to the CCMA during lockdown?

• Until directed otherwise by the CCMA, parties will not be able to submit physical copies (hard copies) of completed referral forms to the CCMA.
• CCMA Rule 7 allows, amongst others, for referrals to be served by means of electronic mail (hereinafter referred to as “e-mail”) and facsimile.

How should you deal with conciliation hearings during lockdown? 

• Where possible, dispute resolution by way of conciliation, subject to different conditions that may apply to conciliation hearings linked to certain matters of mutual interest or ‘public interest’ disputes, will take place telephonically or on a digital online platform that is to the satisfaction of the CCMA or the Commissioner.
• Choice of the form of communication shall depend on what is available to both parties and to the CCMA.
• If the conciliation process cannot take place within 30 days from date of referral, and in the absence of any agreement reached by the Parties prior to the expiry of the 30-day period to extend this period, a certificate of outcome shall be issued by the CCMA in terms of section 135(5) of the LRA

How should you deal with arbitrations during lockdown?

1. Prior to scheduling Arbitration hearings, and subject to CCMA Rule 20, the Parties must be directed to hold a pre-arbitration conference to reach consensus on those issues listed in CCMA Rule 20(2), and the following:

• Whether the Parties are prepared to proceed with the arbitration hearing at the employer’s premises.
• Whether the Parties are prepared to proceed with the arbitration hearing by means of a video-conferencing facility.
• Should the parties not agree to the options set out above, the reasons for such non-agreement are to be included in the pre-arbitration minute.
• The applicable video-conferencing facility to be used for the arbitration hearing.
• The admission of evidence remotely using the video-conferencing facility.
• In the event that a witness does not have access to video-conferencing facilities, agreement on how such evidence will be adduced.
• Admission of evidence by affidavit or by statement that may be confirmed, if so required by the Commissioner.
• Any other information the CCMA or a Commissioner may require in order to exercise a discretion as to how the matter is to be dealt with and which will eliminate or limit the risk of physical proximity among the persons involved.
• Agreements reached herein must be recorded in writing and submitted to the CCMA.

2. As per CCMA Rule 19, the CCMA may direct the requesting Party to deliver a statement of case that sets out the material facts upon which the Party relies and the legal issues that arise from the material facts; and

3. The CCMA may direct the responding Party to deliver an answering statement within a specified time period.

4. Parties may also be requested to attempt to reach an agreement on what oral evidence may be delivered by statement, or where possible, by affidavit.

5. Such statements or affidavits must be submitted electronically to the Commission seven (7) days prior to the scheduled date of the arbitration hearing unless a shorter period of time is agreed to in writing by the Parties.

Are there cases where Parties should appear in person (physical attendance)?

In those matters where a Party appears in person, the following applies:

• The CCMA shall abide by all Regulations and Directives that are issued in terms of section 27(2) of the Disaster Management Act. Thus, it is only in terms of such Regulations and Directives that the CCMA may convene physical hearings at one or more of its premises or at a venue agreed to by the Parties and the CCMA in writing.
• Representatives and Parties who are required to travel to the venues must, where applicable, comply with any restrictions that exist or that may be imposed as from 1 May 2020.
• Only the Parties (if they do not exceed ten (10) in number, subject to the size of the venue, taking into consideration the compulsory social-distancing rule) and their Representatives shall enter the CCMA buildings or designated other venues.
• Should any Party object to having the matter dealt with under the conditions described above, such Party must submit the notice of objection and reasons for such objection in writing and serve same on the other Party and the CCMA. The Commissioner or a Provincial Senior Commissioner, after consideration of the submissions and possible reasonable alternatives, must decide whether the matter should proceed or be postponed.

What is the protocol for video conferencing with the CCMA during lockdown?

• Where the CCMA is not the host of the video conference and is thus not able to record the proceedings using the chosen online facility, the Party hosting the video-conferencing session must record the session and submit the audio file at close of proceedings to a stipulated e-mail address for retention by the Commission.
• A signed statement of confirmation that the recording has not been tampered with in any way must accompany the recording.

Our Labour pro team can assist employers to comply with and participate in each of the new methods contained in the CCMA directives. These new methods may seem cumbersome, onerous, frightening and extraordinary for many CCMA participants. It is for this very reason that we wish to alleviate this added burden for already stressed and troubled employers. At SERR Synergy we strive to guide and navigate employers through the new directives so that employers can focus on their core business, surviving and thereafter prospering once again.

About the Author: Jared Francis joined SERR Synergy in October 2016, and currently holds the title of KZN Labour Manager. He is an admitted attorney who has practised in KZN and Gauteng and has more than 10 years' experience in the legal and industrial relations fields, respectively. He holds an LLB degree, a Post-Graduate Diploma in Industrial Relations and a Post-Graduate Certificate in Forensic Investigation from the University of KwaZulu-Natal. He also holds Post-Graduate Certificates in Advanced Labour Law, Corporate Law, Advanced Human Resource Management and Health and Safety from UNISA. He is currently studying towards his MBA.