The Fundamentals:
Unfairly dismissed – referring a dispute to the CCMA

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1. The employee has been unfairly dismissed from the workplace- how can he/she challenge his/her unfair dismissal? 

1.1 Has the employee exhausted all internal avenues?

Before referring a dispute with any external forum, the employee needs to ascertain whether the employer’s disciplinary code provides for an internal appeal against the disciplinary chairperson’s findings. Where an internal appeal process is provided for, the employee should exhaust the internal disciplinary process and file an appeal.

1.2 Referring an unfair dismissal dispute to the CCMA/Bargaining Council

In the absence of an internal appeal process (as not every company has one) or where the appeal chairperson has elected to uphold the initial disciplinary chairperson’s finding, then the employee may refer an unfair dismissal dispute to the Commission for Conciliation Mediation and Arbitration (“CCMA”) or to a Bargaining Council (having jurisdiction) to hear the dispute.

Before referring an unfair dismissal dispute, the employee must ensure that he/she refers an unfair dismissal dispute to the dispute resolution body that has jurisdiction over the employer’s industry (e.g.: does the dispute fall within the CCMA, MEIBC, NBCRFLI, PSCBC etc.) and then, the employee will need to litigate within that forum, and comply with that forum’s rules.

For purposes of this document, we are focusing solely on employees who are unfairly dismissed from the workplace where the CCMA has jurisdiction.

2. How do I refer an unfair dismissal dispute to the CCMA?

2.1 What document does the employee need to complete?

The employee must complete and sign, thereafter, serve on the employer and file with the CCMA a form 7.11 referral form which is titled: “REFERRING A DISPUTE TO THE CCMA FOR CONCILIATION (INCLUDING CON-ARB)”.

The employee may collect a referral form from one of the CCMA offices or download the form off of the CCMA’s website https://uat.ccma.org.za/wp-content/uploads/2022/02/LRA-7.11_Referring-a-dispute-to-the-CCMA-for-Conciliation-Including-Con-Arb-1.pdf#index. Alternatively, the employee may make use of the free online user platform that the CCMA launched to refer his/her dispute (an e-referral). The applicable link is: https://cmsonline.ccma.org.za/.

2.2 Within what time period must the employee refer the dispute?

The employee is afforded a period of 30 (thirty) calendar days[1] from the date of his/her dismissal to refer his/her dispute or if it is a later date, within 30(thirty) days of the employer making a final decision to dismiss or uphold the dismissal. [2] E.g., in the event that the employee was dismissed but then filed an internal appeal, then the employee will have 30 calendar days from the date that he/she received the outcome of the appeal findings to refer an unfair dismissal dispute.

2.3 What happens if the employee serves and files his/her referral outside of the 30-day time period?

In the event that the employee is late with his/her service on the employer and/or filing with the CCMA (i.e., outside of the 30-day time period) then the employee (on his/her own, with the assistance of his/her trade union or with an attorney’s assistance) will need to bring an application for condonation for the late filing of the referral, that complies with Rule 9 and Rule 31 of the Rules for the Conduct of Proceedings before the CCMA.

The employee bears the onus in proving that good cause has been established in order for condonation to be granted. Condonation is not a matter of right but rather, it remains an indulgence granted by the CCMA commissioners, only in circumstances where good cause has been sufficiently demonstrated.

The application for condonation must address inter alia the following: the degree of lateness, explanation for the delay, prospects of success, and prejudice. Access to the CCMA’s condonation application form can be found at  https://www.ccma.org.za/wp-content/uploads/2022/05/Condonation-application-in-respect-of-unfair-dismissal-dispute.pdf, alternatively, the employee may use the online platform for the application for condonation.

The employer may oppose the employee’s condonation application.

Should the employee be granted condonation, then, his/her referral will then be processed, and the matter will be set down for con/arb or just conciliation. Should the CCMA not grant the condonation application, then the unfair dismissal dispute will not be heard by the CCMA, unless the employee successfully reviews the condonation ruling in the Labour Court, and the matter is then referred back to the CCMA.

2.4 Who may sign the form 7.11?

It is always best for the employee to sign the referral form, if it is possible to do so. Rule 4 of the Rules for the Conduct of Proceedings before the CCMA records that the form “may be signed by the party or person entitled in terms of the Act or these Rules to represent that party in the proceedings”. [3]

The CCMA may refuse to process the referral form in the event that it is not signed or not signed correctly.

2.5 Proof of service on the employer and filing with the CCMA.

The employee must serve a copy of the completed and signed form 7.11 referral on his/her employer by inter alia hand, by emailing or faxing a copy of the completed and signed form 7.11 to the email address or telefax number chosen by the employer/employer’s representative or by sending a copy of the referral form by registered mail or telegram to the chosen address of the employer.

Where an employee elects to utilize the CCMA’s online platform, a copy of the employee’s referral form will automatically be e- mailed to the other party (the employer) provided that the employee included the correct e-mail address in the application form.

Once the employee has proof of service that the form 7.11 was successfully served on the employer (e.g. a registered mail or fax slip, an e-mail report, or read receipt, a copy of the document signed and dated by the employer, or an affidavit that the employee served the document on the other party), then the form 7.11 together with the proof of service on the employer needs to be sent to the CCMA for filing and processing.

Filing with the CCMA may take place via hand delivery of documents, via registered mail, fax or email to the CCMA at an address listed in Schedule One to the CCMA Rules. The CCMA online referral platform may also be used for inter alia con/arb referrals.

The CCMA will not process the referral form without proof of service on the employer having been demonstrated.

2.6 The notice of set down from the CCMA

After receiving the properly served form 7.11, the CCMA will process the referral form. Once processed, the CCMA will notify parties in writing of the date of a con/arb hearing at least 14 (fourteen) days before the scheduled date that is reflected in the notice of set down.[4] The parties may agree to a shorter period or in the event that circumstances require a shorter period, then a shorter period may be implemented.

Notice to the parties may be provided by the CCMA by means of any of the methods prescribed in Rule 5A and/or by short message service.

The CCMA may also contact the parties via telephone or other means before the scheduled date of the conciliation in order to try and resolve the dispute.[5]

The parties are required to attend at the CCMA premises on the date and at the time that is reflected in the CCMA notice. That being said, the matter may also be heard via electronic platforms or via telephone (where applicable).

2.7 The notice reflects that the matter is set down for con/arb. What does con/arb mean?

As set out above, the form 7.11 is titled: “REFERRING A DISPUTE TO THE CCMA FOR CONCILIATION (INCLUDING CON-ARB)”.

What this means is that the CCMA will first try and conciliate the dispute between the employee and the employer, so as to reach an amicable settlement that is acceptable to both parties. Should the parties agree to settle, then the commissioner will draft up a settlement agreement reflecting the terms of settlement, and no arbitration proceedings will be necessary. That means no evidence will need to be led, no documentary evidence will need to be prepared and the matter becomes resolved in full and final settlement of the dispute.

In Con/Arb proceedings, should conciliation fail, the parties will then commence with arbitration proceedings on the same day. This means that the parties will present their respective versions to the commissioner by inter alia providing oral evidence (witness evidence) and/or where applicable, presenting documentary evidence after the conciliation process fails. The commissioner will be required to consider all of the evidence presented during the arbitration proceedings, and thereafter issue an arbitration award within 14 (fourteen) days of the conclusion of the arbitration proceedings. [6] The arbitration award will either reflect a finding in favour of the employee or the employer.

In the event that either the employer or the employee alleges that there is a defect in the arbitration proceedings/award, he/she/it may apply to the Labour Court for an order setting aside the arbitration award, by bringing a review application within 6 (six) weeks of the date that the arbitration award was served on the applicant.[7]

2.8 The employer has objected to con/arb in terms of R17(2) of the Rules for the Conduct of Proceedings before the CCMA. What does this mean?

Both the employee and the employer may object to a dispute being dealt with in terms of s 191(5A) of the LRA (i.e., con/arb), provided that the dispute does not involve a dismissal related to probation or an unfair labour practice.

The employee may object to the arbitration commencing immediately after conciliation by objecting to the same on the form 7.11 referral form, before sending the form to the employer and the CCMA.

The employer may also object to the arbitration commencing immediately after conciliation (i.e., con/arb process) by delivering written notice to the CCMA and to the employee at least 7 (seven) days prior to the scheduled date reflected in the notice of set down issued by the CCMA.

If an objection is lodged, then the CCMA will only conciliate the matter on the date reflected in the notice. There will be no arbitration proceedings that will follow the conciliation proceedings, should conciliation fail.

2.9 What happens if the employee does not attend on the set down date?

We always advise every employee who has an unfair dismissal claim and every employer who is defending an unfair dismissal claim, to attend the set down dates that are issued by the CCMA. A party’s failure to attend at conciliation, con/arb or arbitration may result in possible negative consequences for the party who is not in attendance. For example, a failure on the part of the employer to attend arbitration proceedings could result in a possible default award being issued against the employer, alternatively, the employee’s failure to attend arbitration, may result in the case being dismissed.

Rule 13 of the Rules for the Conduct of Proceedings before the CCMA records that if the employee (party who referred the dispute) fails to attend or to be represented at conciliation (as contemplated in Rule 25(1)(a)), the commissioner may either continue with the proceedings, adjourn the conciliation to a later date within the 30-day period or conclude the proceedings by issuing a certificate that the dispute remains unresolved. In exercising his/her discretion as to what to do, the commissioner will take into account inter alia factors set out in Rule 13(2).

Should a party fail to appear or fail to be represented at a con/arb hearing, then the commissioner must conduct the conciliation on the date specified in the notification irrespective of whether a party has lodged a notice of objection. [8] The Commissioner may then deal with it in accordance with Rules 17(4)-(6).

Should a party to the dispute fail to attend or be represented at any arbitration proceedings before the CCMA, where that party is the party who referred the dispute (in this case the dismissed employee), a commissioner may dismiss the matter by issuing a written ruling. If it is the party who did not refer the dispute that is not in attendance, (in this case the employer), then the commissioner may continue with the proceedings in the absence of that party or adjourn the proceedings to a later date. [9]

The commissioner must however be satisfied that the party who is not in attendance has been properly notified of the date, time and venue of the proceedings.

2.10 Can the employee be represented by an attorney or candidate attorney at the CCMA?[10]

In conciliation proceedings, the employee may appear in person or be represented by a member of the employee’s registered trade union or office bearer. Attorneys and candidate attorneys are not permitted to attend conciliation proceedings.

In arbitration proceedings, the employee may appear in person, may be represented by a member of the employee’s registered trade union or office bearer.  In arbitration proceedings, where the dismissal of the employee relates to the employee’s conduct or capacity, then the employee may in certain limited circumstances be represented by an attorney or a candidate attorney only if:

  • the commissioner and all the other parties’ consent (agreement is attained); or
  • where the commissioner concludes that it is unreasonable to expect the employee to deal with the dispute without legal representation after considering certain factors (an application for legal representation is brought by the employee and the commissioner grants legal representation).


Employees are however permitted legal representation in unfair dismissal disputes in the CCMA, where for example, the reason for dismissal relates to that of a constructive dismissal or where it is a dismissal in terms of s189 (a single retrenchment).

2.11 A certificate in terms of section 135(5) of the LRA has been issued. What does the employee need to do now? 

In circumstances where the CCMA has issued the parties with a certificate in terms of section 135(5) of the LRA recording inter alia that the dispute remains unresolved,[11] the employee will then need to complete a form 7.13. The completed form 7.13 together with the certificate of non-resolution will need to be served on the employer. Once served on the employer, the said documents together with proof of service on the employer, needs to then be filed with the CCMA for processing (see 2.5 above). Alternatively, the employee may refer the dispute via an e-referral by accessing the CCMA’s website.

The form 7.13 must be filed within 90 (ninety) calendar days from the date that appears on the certificate of non-resolution. Where the employee is late in referring the matter to arbitration, then an application for condonation will need to be brought (see 2.3 above).

Once processed, the CCMA must give parties twenty-one (21) days’ notice of the date of an arbitration hearing unless the parties agree to a shorter period or reasonable circumstances require a shorter period.

2.12 Reinstatement, limits on compensation and claims under s73A of the Basic Conditions of Employment Act

The primary remedy afforded to an employee who has been unfairly dismissed is reinstatement (with or without retrospective back pay) into the position that the employee occupied prior to his/her dismissal. The commissioner may however order the employer to re-employ the employee or alternatively compensate the employee should reinstatement not be appropriate. [12]

The commissioner must require the employer to reinstate or re-employ the employee unless:

  • the employee does not want to be reinstated;
  • the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable; or
  • it is not reasonably practicable for the employer to reinstate or re-employ the employee; or
  • the dismissal is unfair only because the employer did not follow a fair procedure.


The commissioner is not bound to reinstate the employee, and may as an alternative to reinstatement, order re-employment or may order the employer to pay compensation.

Should the commissioner determine that compensation is the appropriate remedy for the unfair dismissal, then the commissioner will be required to make an order for compensation that is just and equitable (i.e., he/she exercises a discretion) but that order may not exceed 12 (twelve) months remuneration, calculated at the employee’s rate of remuneration on the date of dismissal. [13]

If for example, the employee’s dismissal was found only to be procedurally unfair (i.e., only the employer’s process was unfair) but the dismissal was in fact substantively fair (i.e., the employer had good reason/good cause for termination) then usually, the employee will be granted compensation on the lower end of the 12-month scale (e.g., between 0-3 months compensation- facts dependent of course). Where the CCMA finds that there is both substantive and procedural unfairness, then generally speaking, the employee will usually be granted compensation on the upper end of the 12-month scale (e.g., between 6-12 months – facts dependent of course).

Employees must appreciate that an ordinary unfair dismissal dispute is capped at a maximum of 12 months remuneration and the commissioner has no discretion to grant any compensation beyond the 12-month cap. It is only in circumstances where the employee alleges and refers an automatically unfair dismissal dispute that increased compensation of up to a possible 24 months may be granted. Please note however, that automatically unfair dismissal disputes do not fall within the jurisdiction of the CCMA, but that of the Labour Court. As such, once conciliation fails at the CCMA, the employee will be required to refer his/her alleged automatically unfair dismissal dispute to the Labour Court for adjudication.

The commissioner can, however, also grant an order relating to an employee’s unpaid salary, overtime payments, bonuses, annual leave etc., where an employee brings a claim under section 73A of the Basic Conditions of Employment Act 75 of 1997, provided that the employee earns less than the earnings threshold.

3. Legal advice and disclaimer

This article is general in nature as we are unable to tailor advice to align with each reader’s situation. As such, it is in not an exhaustive account of all the facts and scenarios that may occur. Please seek professional tailored legal advice where the facts or circumstances require the same. We cannot be held liable for any incorrectly interpreted or applied legal advice from this article.

As such, should you or your company be navigating your way through a difficult process in a dispute resolution forum, please seek tailored advice from an employment attorney. Even in circumstances where attorneys are not permitted to appear on behalf of employers or employees in the CCMA, an attorney may provide invaluable guidance and assistance in dealing with strategy and arbitration preparation (witness prep, bundle prep, opening statements, advice on how to lead evidence, how to cross examine, closing arguments etc.).

DEANNE HOWES

[1] Refer to Rule 3 of the Rules for the Conduct of Proceedings before the CCMA.

[2] Section 191 (1)(b)(i) of the Labour Relations Act 66 of 1995.

[3] Rule 4 of the Rules for the Conduct of Proceedings before the CCMA should be read together with Rule 25.

[4] Rule 11(1)(b) of the Rules for the Conduct of Proceedings before the CCMA.

[5] Rule 12 of the Rules for the Conduct of Proceedings before the CCMA.

[6] Section 138 (7) of the Labour Relations Act 66 of 1995.

[7] Section 145 of the Labour Relations Act 66 of 1995.

[8] Rule 17(4)- (6) of the Rules for the Conduct of Proceedings before the CCMA.

[9] Rule 30 of the Rules for the Conduct of Proceedings before the CCMA.

[10] Rule 25 of the Rules for the Conduct of Proceedings before the CCMA.

[11] Rule 15 of the Rules for the Conduct of Proceedings before the CCMA.

[12] Section 193 of the Labour Relations Act 66 of 1995.

[13] Section 194 of the Labour Relations Act 66 of 1995