The CCMA resolves employment disputes without either side needing a lawyer, at no cost to use. For a small employer it is usually the first and only forum they encounter, and the experience is far less intimidating than expected — provided you arrive with the documents.
How it starts
A former or current employee refers a dispute. There are time limits for referring, and they are short — a matter of weeks from the dismissal for an unfair dismissal claim, with condonation required if late.
You receive notice of the referral and a date. Attend. An employer who does not appear can have the matter decided in their absence, and unwinding that is much harder than attending would have been.
Conciliation first
The first step is conciliation: a commissioner meets both sides and tries to help them reach agreement. Nothing is decided and nothing is imposed. What is said there is generally without prejudice and cannot be used later.
A great many matters settle here, and settling is frequently the right commercial answer even where you believe you would win — because the alternative is arbitration, more time, and an outcome you do not control.
Go in having decided what you would settle at, and why.
Then arbitration
If conciliation fails, the matter proceeds to arbitration, where a commissioner hears evidence from both sides and issues a binding award.
This is where the record matters. The employer generally bears the onus of showing the dismissal was fair — in reason and in process — which means producing the contract, the rules, the warnings, the notice of the hearing, the minutes, and the outcome letter.
An employer with a folder in date order is in a strong position. One with a conviction and no paperwork usually is not, whatever actually happened.
Representation
Legal representation is limited at arbitration and not automatic — the process is designed for the parties themselves. You may generally be represented by a director or employee, or by an employers' organisation you belong to.
That is a reason to join one if you employ people. They will advise before a dismissal as well as appear afterwards, which is where the value is.
Possible outcomes
Reinstatement, re-employment, or compensation, which is capped by reference to the employee's remuneration. An award is enforceable.
The realistic exposure for a small employer who dismissed badly is a compensation award plus the time spent — which is almost always more than taking advice beforehand would have cost.
What to do the day you receive a referral
Diarise the date. Assemble the file — contract, rules, warnings, hearing documents, final payment records. Take advice. Decide your settlement position before you walk in.
And do not contact the employee to negotiate directly without care; anything said can complicate the process. Deal with it through the forum.
General description of a dispute resolution process, not legal advice. Time limits, caps and procedures change; take proper advice on your own matter.