A CCMA Referral Just Landed on Your Desk. Now What?

An envelope or email arrives from the CCMA with a former employee's name and a case number, and the clock is already running. The single most expensive mistake an employer makes at this stage is treating the referral as something to deal with later. A CCMA process moves on its own timetable, not yours, and if you are not there on the day, the commissioner can decide the matter without you. This guide walks through what the referral actually is, the stages it will pass through, the deadlines that bind you, and how to get your file ready.

Do not ignore it — the default award risk

The most important thing to understand is what happens if you do nothing. Once a dispute reaches arbitration, the CCMA does not need your cooperation to finish it. If the employer fails to attend, the commissioner may hear only the employee's version and issue a default award against you. That award can order reinstatement or up to twelve months' compensation, and it becomes enforceable in the same way as a Labour Court order.

Overturning a default award is possible only by applying for rescission, and you must show a reasonable explanation for your absence and that you have a real defence. "We thought we would sort it out informally" is not a reasonable explanation. It is far cheaper and far more certain to simply be there, prepared, on the first date.

Read the referral first: what the LRA 7.11 tells you

The document you have received is almost always a referral to conciliation, filed on the CCMA's LRA 7.11 form. Before you do anything else, read it properly. It tells you three things you need: the exact nature of the dispute the employee is pursuing, the date they say the dispute arose, and the outcome they are seeking.

The nature of the dispute matters because it dictates the whole track ahead. An unfair dismissal dispute is different from an unfair labour practice dispute (promotion, demotion, suspension, benefits, training), and both are different again from a claim about outstanding money owed. Check whether the facts as the employee has stated them match your own record, and note the date of dismissal they have given — you will need it to check the deadlines below.

The three stages: conciliation, con-arb, arbitration

Most dismissal disputes move through a predictable sequence. Knowing where you are in it stops you from over-preparing for the wrong stage or arriving unready for the right one.

Conciliation comes first. This is an informal, without-prejudice meeting run by a commissioner whose only job is to see whether the dispute can be settled. There are no witnesses and no evidence led; nothing said there can be used later. If the matter settles, it is over. If it does not, the commissioner issues a certificate of outcome (often called a certificate of non-resolution) which is your gateway to the next stage.

Arbitration is the stage that resembles a hearing. Here evidence is led, witnesses are called and cross-examined, and the commissioner issues a binding award. This is where the case is actually won or lost, and it is why the groundwork you did during the disciplinary hearing matters so much.

• Conciliation — informal settlement talks, no evidence, without prejudice.
• Arbitration — a formal hearing with witnesses, leading to a binding award.
• Con-arb — both of the above, run back-to-back on the same day.

Con-arb: the default route, and when you can object

For most misconduct and incapacity dismissals, and for unfair labour practice disputes, the CCMA now runs con-arb as the default: conciliation and, if that fails, arbitration proceed on the same day, one straight after the other. This is efficient, but it has a trap for the unwary employer. If you turn up expecting only a settlement chat and the matter does not settle, the arbitration begins immediately — and you had better have your witnesses and documents with you.

You can object to con-arb and force the two stages to be split, which buys you time to prepare properly for arbitration. To do so you must file a written objection, generally at least seven days before the scheduled date. There is an important exception: in dismissal disputes concerning probationary employees, no objection is allowed and con-arb proceeds regardless. The practical takeaway is to decide early whether you want the stages separated, and to lodge your objection in time if you do.

The deadlines that bind you

CCMA timeframes are strict, and they run against both sides. The employee must refer an unfair dismissal dispute within 30 days of the date of dismissal, and an unfair labour practice dispute within 90 days of the act or omission. If their referral is late and they have not obtained condonation, that is a point you can and should raise.

Your own clock matters just as much. If conciliation fails and a certificate is issued, the dispute must be referred to arbitration within 90 days of that certificate. Diarise every date the moment it is set, confirm your attendance, and never assume a postponement has been granted until you have it in writing from the CCMA.

Assemble your file before the date

The outcome at arbitration is usually determined by the paper trail you built long before the referral arrived. As soon as a CCMA letter lands, pull the complete file together and check it is coherent. Gaps you discover now can sometimes still be explained; gaps discovered by the commissioner on the day cannot.

Line up the people too. Identify who chaired the disciplinary hearing, who will give evidence about the misconduct or poor performance, and whether they are still contactable and willing to attend. A strong case on paper collapses if the only witness who saw what happened has left the company and no one thought to ask them to come.

• The signed employment contract and any relevant policies or codes of conduct.
• The notice of the disciplinary hearing, the charges, and the minutes or recording.
• The outcome and sanction, plus any prior warnings relied on.
• Proof the employee was invited and given a chance to state their case.
• The names and contact details of every witness you intend to call.

Decide early whether you need representation

Employers are entitled to be represented at the CCMA, and in an arbitration that turns on cross-examination and the correct legal test, competent representation frequently makes the difference between an award you can live with and one you cannot. The rules on who may represent you differ between conciliation and arbitration, so settle this question early rather than on the morning of the hearing.

If you are unsure how to read the referral, whether to object to con-arb, or how to run the arbitration itself, it is worth getting help before the first date rather than after a default award. You can read more about how CCMA representation works, or see our other employer guides on running a disciplinary process that holds up.

Frequently asked questions

What happens if I ignore a CCMA referral?

If you fail to attend arbitration, the commissioner can proceed in your absence and issue a default award against you, which may order reinstatement or up to twelve months' compensation. Setting it aside requires a rescission application with a good reason for your absence and a genuine defence — far harder than simply attending on the day.

How long does an employee have to refer a dispute to the CCMA?

An unfair dismissal dispute must be referred within 30 days of the date of dismissal. An unfair labour practice dispute must be referred within 90 days of the act or omission. A late referral needs condonation from the CCMA, and if the employee has not obtained it, you can raise the point.

What is the difference between conciliation and arbitration?

Conciliation is an informal, without-prejudice attempt to settle the dispute — no evidence is led and nothing said can be used later. Arbitration is a formal hearing where witnesses give evidence and are cross-examined, ending in a binding award. Con-arb combines the two on a single day.

Can I object to con-arb to get more time?

Usually, yes. You can file a written objection, generally at least seven days before the scheduled date, to have conciliation and arbitration heard separately. The main exception is a dismissal concerning a probationary employee, where no objection is permitted and con-arb proceeds.

Do I need someone to represent me at the CCMA?

You are not obliged to have representation, but arbitration turns on cross-examination and the correct legal test, and the outcome is binding. Many employers find that experienced representation materially improves the result. Decide early, because the rules on who may represent you differ between conciliation and arbitration.

This article is general information on South African labour law and is not legal advice on your specific situation. Speak to us about your facts.