Received a CCMA referral notice? You have a legal obligation to attend. Non-attendance can result in a default award against your business. Call SBHR now for urgent guidance.
What's in This Guide
What is the CCMA? A Plain-Language Overview
The Commission for Conciliation, Mediation and Arbitration (CCMA) is a statutory dispute-resolution body established under Section 112 of the Labour Relations Act (LRA) 66 of 1995. It operates independently of the government and the courts, and its purpose is to resolve disputes between employers and employees quickly, cheaply, and fairly.
The CCMA handles disputes referred by employees who believe they have been unfairly dismissed, unfairly treated, or denied a workplace right. As an employer, you will receive a notice to attend a CCMA hearing if an employee refers a dispute against you.
What types of disputes does the CCMA handle?
- Unfair dismissal (the most common category)
- Automatically unfair dismissal (e.g. dismissal linked to union membership or whistleblowing)
- Unfair labour practices (unfair conduct relating to promotion, demotion, training, or benefits)
- Mutual interest disputes (disagreements over wages or working conditions that may lead to strikes)
- Disputes about the interpretation of collective agreements
- Sexual harassment and workplace discrimination complaints
- Disputes over severance pay and retrenchment procedures
Key Entities and Legislation Governing the CCMA
| Term / Entity | What It Means for Employers |
|---|---|
| CCMA | Commission for Conciliation, Mediation and Arbitration. The body that will adjudicate the dispute against your business. |
| LRA | Labour Relations Act 66 of 1995. The primary law governing dismissal, strikes, and workplace dispute resolution in South Africa. |
| BCEA | Basic Conditions of Employment Act 75 of 1997. Governs working hours, leave, notice periods, and minimum employment conditions. |
| EEA | Employment Equity Act 55 of 1998. Governs fair treatment and affirmative action obligations. Relevant when discrimination disputes arise at the CCMA. |
| Bargaining Council | Industry-specific body that handles disputes for employers falling under a registered collective agreement (e.g. metal, retail, building industries). May replace the CCMA in some sectors. |
| SABPP | South African Board for People Practices. The professional body for HR practitioners. Ensures your HR consultant is professionally registered. |
| Con-Arb | A combined conciliation and arbitration hearing held on the same day. Common for unfair dismissal and unfair labour practice disputes. |
The CCMA Process Step by Step
Understanding the full timeline of a CCMA matter is the first step to preparing an effective defence.
Employee files a referral
Employee files Form LRA 7.11 at the CCMA.
Within 30 days of dismissal (or 90 days for unfair labour practices)Notice of Set-Down issued
CCMA issues Form CON 7.13 to both parties with hearing date.
Typically 5–15 days before hearingConciliation hearing
Commissioner attempts to settle the dispute between parties.
Day 1 of the processSettlement reached
Written settlement agreement binding on both parties.
End of conciliationNo settlement
Certificate of outcome issued; dispute proceeds to arbitration or Labour Court.
Within 30 days of conciliationArbitration hearing
Commissioner hears evidence and makes a binding award.
Can take 1–3 hearings; may span weeksArbitration award issued
Binding award issued, subject to review only.
Within 14 days of last hearingStage 1: Receiving a CCMA Referral Notice
When an employee refers a dispute, the CCMA sends you a Notice of Set-Down (Form CON 7.13) specifying the date, time, and venue of the conciliation hearing. Do not ignore this notice. Failure to attend can result in the matter proceeding in your absence and an award being made against you.
WARNING: You have a legal obligation to attend the CCMA hearing on the date specified. Non-attendance can result in a default award against your business. If you cannot attend, you must formally apply for a postponement before the hearing date.
Stage 2: Conciliation — What Employers Must Know
Conciliation is a facilitated negotiation session. A CCMA commissioner will meet with both parties — separately or together — and attempt to help you reach a settlement. The conciliation process is confidential and without prejudice, meaning anything said during conciliation cannot be used as evidence in arbitration. If you have never sat through one before, a walkthrough of a conciliation hearing will help you know what to expect on the day.
What to bring to conciliation:
- The employee's contract of employment
- All disciplinary hearing documentation (notice to attend, chairperson's ruling, written warnings)
- Any relevant written communications (emails, WhatsApp messages, attendance records)
- A clear record of the dismissal reason and procedure followed
- Authority from your business to make a settlement offer if appropriate
SBHR TIP: Conciliation is often the best opportunity to resolve a dispute cost-effectively. A well-prepared settlement offer at this stage can save you the time, cost, and reputational risk of a full arbitration hearing. Book a consultation and your HR consultant can advise on the appropriate settlement range.
Stage 3: Arbitration — The Formal Hearing
If conciliation fails, the matter proceeds to arbitration. Unlike conciliation, arbitration is a formal quasi-judicial process. Both parties present evidence, call witnesses, and make legal arguments before a CCMA commissioner, who then issues a binding arbitration award.
The arbitration process follows these steps:
- Opening statements from both parties explaining their case
- Employer presents its case: calls witnesses, tables documentary evidence, takes the employee and witnesses through cross-examination
- Employee presents their case in response
- Closing arguments
- Commissioner deliberates and issues a written arbitration award within 14 days
The standard of proof in CCMA arbitration is the balance of probabilities — the commissioner must be satisfied that your version of events is more likely than not. Reinstatement is the default remedy at this stage, though our case notes on when reinstatement can be resisted set out the circumstances where an employer can argue against it.
CRITICAL: The CCMA operates within a "substantive and procedural fairness" framework. Even if the reason for dismissal was valid (substantive fairness), if you failed to follow a fair procedure — including a disciplinary hearing, notice, and opportunity to respond — the dismissal can still be found unfair. Both elements must be satisfied.
Unfair Dismissal: What South African Employers Need to Know
The most common dispute category at the CCMA is unfair dismissal. Under the Labour Relations Act, every dismissal is presumed unfair unless the employer can prove substantive and procedural fairness.
Substantive Fairness
Was there a valid reason for dismissal?
- Misconduct: Employee breached a workplace rule (theft, insubordination, dishonesty, repeated absenteeism)
- Incapacity: Employee unable to perform duties despite support and a fair opportunity to improve
- Operational requirements: Economic, structural, or operational needs required staff reduction
Procedural Fairness
Did you follow the correct process?
- Notified the employee of allegations in writing
- Gave reasonable opportunity to prepare a response
- Conducted a fair pre-dismissal disciplinary hearing
- Allowed employee representation (fellow employee or shop steward)
- Informed employee of outcome and sanction in writing
- Informed of right to appeal and CCMA referral process
SBHR TIP: The single most common reason employers lose CCMA cases is procedural failure — specifically, not having the correct documentation to prove a fair hearing took place. SBHR can chair disciplinary hearings for your business, ensuring every step is correctly followed and documented.
Retrenchment and Section 189 Consultations
Retrenchment (dismissal for operational requirements) is governed by Section 189 of the Labour Relations Act. It is one of the most technically complex areas of South African labour law — and one where procedural mistakes are extremely costly. Before issuing any notice, work through the full Section 189 checklist so that every step is documented correctly.
The Section 189 Consultation Process
Before retrenching any employee, you must follow a formal consultation process:
- Issuing a written Section 189 notice to all potentially affected employees
- Disclosing relevant information: reasons for retrenchment, number and categories of employees affected, proposed selection criteria, and severance package calculation
- Conducting genuine and meaningful consultation — not merely informing employees of a fait accompli
- Applying fair and objective selection criteria (e.g. LIFO — Last In First Out — or skills-based criteria)
- Paying the statutory severance package: one week's remuneration per completed year of service
Note: Section 189A applies to larger retrenchments (50+ employees). Additional requirements apply, including the appointment of a facilitator. Failure to comply with S189 or S189A exposes your business to substantial CCMA claims and potential reinstatement orders.
Essential Documentation: The Employer's Evidence Checklist
Winning at the CCMA is fundamentally a documentation exercise. If you cannot produce a document at the hearing, it effectively does not exist.
Misconduct Dismissal
- Signed employment contract
- Signed disciplinary code & procedure
- Written notice to attend disciplinary hearing
- Signed acknowledgement of receipt
- Attendance register for hearing
- Detailed minutes of hearing
- Chairperson's written ruling & sanction
- Proof of delivery of outcome
- Prior written warnings (signed & dated)
- Supporting evidence (CCTV, witness statements, emails)
Incapacity (Poor Performance)
- Job description and KPIs
- Performance review documentation
- Written performance improvement plan (PIP)
- Measurable targets and timelines
- Records of counselling & support
- Correspondence noting failure to meet targets
- Notice to attend incapacity hearing
- Minutes and outcome of hearing
Retrenchment
- Written Section 189 notice (signed)
- Consultation meeting minutes (signed/witnessed)
- Selection criteria document
- Application of selection criteria
- Severance pay calculation
- UIF documentation
- Final payment records
SBHR TIP: SBHR offers a full HR compliance audit to assess the quality of your existing documentation and identify gaps before they become CCMA liabilities. Book your free consultation.
CCMA Representation for Employers: Your Options
In conciliation hearings, parties generally represent themselves. In arbitration hearings, the following persons may represent an employer.
| Option | Advantages | Considerations |
|---|---|---|
| Self (business owner) | No cost; you know the facts best | High risk; unfamiliarity with CCMA procedure and rules of evidence |
| Labour attorney | Full legal expertise; strong in complex or high-value matters | Higher cost; may be excessive for straightforward cases |
| HR/IR consultant (recommended for SMEs) ⭐ | Cost-effective; deep CCMA experience; practical business understanding; can also fix root cause HR issues | Ensure consultant is experienced in CCMA arbitration, not just HR advisory |
For most South African SMEs, the most cost-effective and practical option is a specialist HR and labour relations consultant. An experienced consultant combines deep knowledge of CCMA procedure with practical business sense — and typically charges a fraction of attorney rates. Explore SBHR's CCMA representation for employers to see how this works in practice.
Frequently Asked Questions: CCMA for Employers
These are the questions SBHR most commonly receives from South African business owners facing a CCMA dispute.
Prevention: How to Reduce Your CCMA Exposure
The most effective CCMA strategy is prevention. Most CCMA cases arise from the same avoidable mistakes. Here is what every South African employer should have in place — much of which an outsourced HR retainer maintains for you as a matter of course.
The Employer's HR Compliance Checklist
Facing a CCMA Dispute? Don't Go In Unprepared.
SBHR provides expert CCMA case preparation and strategy guidance for South African SMEs. Book a free consultation to assess your case and understand your options.
Disclaimer: This guide is for general informational purposes and does not constitute legal advice. Every employment dispute is unique. SBHR recommends seeking professional HR or legal advice before taking action in any CCMA matter.