A Matter (relating to dismissal) is referred to the correct body (CCMA/Bargaining Council) within 30 days of the date of the unsuccessful appeal (other disputes have different time restrictions)
A. If the dispute is settled through conciliation:
- Make sure the agreement is recorded in writing and that it is understood by both parties.
- Follow up to make sure the agreement is implemented.
- If agreement is not implemented, apply to the Labour Court for a Court Order.
B. If the dispute is not settled through conciliation:
- Refer the case for arbitration within 90 days of the certificate of outcome being issued, with the BC or CCMA (for unfair dismissal) or go to the Labour Court (depending on the type of dispute) or take individual action.
- The matter will be referred to Arbitration with the BC or CCMA If the dispute involves:
- Dismissal for misconduct or incapacity
- Unfair labour practice not involving arbitrary discrimination like: Severance pay, Unfair disciplinary action, Organisational rights like union access to the workplace, Unfair retrenchment (of an individual).
C. In certain cases, you can apply, within 6 weeks of the Award being made by the CCMA, to the Labour Court for Review.
- The matter will be referred to Adjudication with the Labour Court if the dispute involves:
- Automatically unfair dismissal for example pregnancy or for refusing to obey an illegal order,
- Arbitrary and unfair discrimination,
- Unfair labour practice that involves arbitrary discrimination,
- Right to join a trade union, strike and picket.
When the matter is referred to the Labour Court, you can appeal the Labour Court decision in the Labour Appeal Court.
D. Industrial Action can be taken if:
- There is an agreement between workers and employer which already has a decision about the issue or says that such disputes must be referred for arbitration or prohibits industrial action.
- The LRA says such disputes must be referred for arbitration.
- Workers are engaged in an essential service.
- With industrial action, you must wait 30 days from referring the dispute to the CCMA.
- Wait for unsuccessful conciliation certificate from the CCMA.
- Give 48 hours written notice to employer.