CCMA and its Effectiveness on Arbitration in Unfair Dismissal Disputes: a

Legal Analysis

Research proposal submitted in partial fulfilment of the requirements for

the degree of Master of Laws in Labour Law at the North-West University

K.L. Msinga

Student number: 21248710

Supervisor: Dr Jean Kanamugire

Title: CCMA and its Effectiveness on Arbitration in Unfair Dismissal Disputes: a Legal
Analysis

Keywords: CCMA, effectiveness, arbitration, unfair dismissal, labour

1 Background

The Constitution of the Republic of South Africa (hereinafter “the Constitution”) 1

provides that that everyone has the right to fair labour practice. 2 The term
“everyone” includes both employers and employees. The right to fair labour practice
is legislatively recognised by the Labour Relations Act (LRA).3

In relation to this research study, the imperative objective of the LRA is to

encourage effective and speedy labour dispute resolution. 4 The Commission for
Conciliation, Mediation, and Arbitration (CCMA) was introduced to make provision for
an efficient, accessible, and flexible forum to resolve labour disputes through the
means of conciliation, mediation, and arbitration. 5

It is a great initiative to have an alternative dispute resolution set up that handles

labour disputes. Alternative dispute resolution systems for labour disputes provide a
relief to already overloaded courts. It is mandatory for every labour dispute to be
handled effectively to give effect to the constitutional right of fair labour practices.
Unfortunately, not all of the labour disputes are dealt with effectively. 6

South Africa's industrial relations history, particularly in relation to the development

of alternative dispute resolution systems, reflects the country's racially divided

1
Constitution of the Republic of South Africa of 1996.
2
Section 23 of the Constitution,
3
Labour Relations Act 66 of 1995.
4
Section 1(a)(iv) of the Labour Relations Act.
5
Section 112 of the Labour Relations Act.
6 Bendeman2006 AJCR 88.
7 Budd and Colvin Industrial Relations 463.
8 Budd and Colvin Industrial Relations 463.

6
Zall 2013 CLLJ 433.

1
history of white supremacy.7 The South African labour society has its origins in a
historically segregated working class based on race and skills. 8 This working class
was perpetuated as a tiny, mostly skilled and exclusive white group of trade
unionists and a vast disorganized and unskilled black proletariat. 9

The discovery of minerals increased the demand for specialized labour because
South Africa lacked the necessary skills and technical expertise for hard-rock
mining.10 As a result, skilled experts, particularly Cornish hard-rock tin miners and
other types of craftsmen were recruited primarily from the English-speaking
industrial world.11

As white miners and craftsmen became more radical and engaged in violent strike
action, legislation was enacted in the form of the Industrial Disputes Prevention
Act12, but it was unable to achieve its objectives. 13 In the 1910s, white workers led
more extreme strikes, such as the 1913 miners' strike and the 1914 general strike. 14
In 1922, the greatest and deadliest strike in South African labour history took on the
characteristics of a civil war on the Witwatersrand. 15

The strike of 1922 was a watershed moment in South African industrial history. It
heralded the separation of black and white workers, as well as the establishment of
the "conciliation system" via the Industrial Conciliation Act. 16 The Act repealed the
Industrial Dispute Prevention Act and structured South African employer-union
relations.17 The Industrial Conciliation Act restricted the right to strike by making it
illegal to strike unless the statutory criteria of resolving the disagreement in an
industrial commission or conciliation tribunal were met.18

10
Van Eck 2012 TSAR 47.

11
Bhorat H and Pauw K 2007 DPRU 12.
12
Bhorat H and Pauw K 2007 DPRU 12.
13
Bhorat H and Pauw K 2007 DPRU 12.
14
Bhorat H and Pauw K 2007 DPRU 12.
15
Bhorat H and Pauw K 2007 DPRU 12.
16
Bhorat H and Pauw K 2007 DPRU 12.
17
Bhorat H and Pauw K 2007 DPRU 12.
18
Bhorat H and Pauw K 2007 DPRU 12.

2
Because white and black trade unionism grew between 1931 and 1935, the 1924
Industrial Conciliation Act was repealed and replaced by the 1937 Industrial
Conciliation Act19 The goal of the 1937 Act was to achieve industrial peace between
employers and employees by utilizing arbitration, conciliation, and mediation.

2 Problem statement

The CCMA is a statutory body introduced in 1995 in terms of Section 112 of the
LRA. When the CCMA was established, it was expected that it would handle an
average of 30 000 referrals each year across the country. 20 However, the referral of
cases exceeded the average of referrals that was expected. According to the CCMA
annual reports, during the 1997/1998, 67 319 cases were referred to the CCMA. The
trend of referrals continues to grow year after year with 154 279 referrals received
in 2010/2011.21 During the 2015/2016 reporting period, the CCMA reported 179 528
referrals.22 During the period of 2016/2017, the CCMA reported 188 449 referrals. 23

The trend continued to rise in 2018/2019, with 193 732 referrals reported. Currently,
the trend for 2019/2020 is 221 547 referrals. 24 This translates to a 14% increase in
cases referred year on year, or 27 815 more cases referred and an average of 879
new matters referred to the CCMA every working day.25

In 2019/20, approximately 59% of all referrals were related to unfair dismissal

claims, compared to 71% the previous fiscal year. This is the significance of the
CCMA being overburdened by excessive referrals of unfair dismissal disputes, which
affects its effectiveness when dealing with unfair dismissal disputes. 26 The high
increase in referrals indicates that there are issues in the labour market that must be
addressed at the ground level in order to limit workplace disputes. However, it
should be noted that the country's economy is growing slowly and is still being

19
Bhorat H and Pauw K 2007 DPRU 12.
20
Bhorat H and Pauw K 2007 DPRU 12.
21
Bhorat H and Pauw K 2007 DPRU 12.
22
The CCMA Annual Report 2019/2020 http://www.ccma.org.za 25.
23
The CCMA Annual Report 2019/2020 http://www.ccma.org.za 25.
24
The CCMA Annual Report 2019/2020 http://www.ccma.org.za 25.
25
The CCMA Annual Report 2019/2020 http://www.ccma.org.za 25.
26
Tarasewicz and Borofsky 2007 JLEL 366.

3
weighed down by the rising unemployment rate. As a result, legal dispute resolution
mechanisms such as the CCMA are burdened.

The labour dispute resolution system is currently under strain, as is evident from
numerous reports about the problems experienced by the CCMA. 27 Even though the
LRA has brought statutory dispute resolution within reach of the ordinary worker, it
might actually have compounded the problems relating to dispute resolution in the
country. The high rate of individual unfair dismissal cases referred to the CCMA is an
indication that the adversarialism that used to be found in the collective relationship
has now manifested itself in the individual relationship. This study focuses on
CCMA’s capacity to effectively deal with labour conflicts and disputes within the legal
framework provided by the LRA. This includes an investigation into the reasons for
the high referral rate of unfair dismissal cases to the CCMA and whether arbitration
is effective in dealing with these problems.

3 Motivation

Disputes are common and unavoidable in the workplace, making it critical to

improve our laws. An effective labour dispute resolution is thus critical in maintaining
industrial peace.

In general, focusing on the interests of each party tends to produce higher

satisfaction with outcomes, better working relationships, less recurrence of disputes
and lower transaction costs, as opposed to determining who is right or wrong. A
focus on the rights of each individual party resolves the problem underlying the
dispute more effectively and thus tends to generate a higher level of mutual
satisfaction with outcomes than a focus on rights or power. 28 If the parties are more
satisfied, their relationship benefits and it becomes unlikely for the dispute to recur.
An effective CCMA is thus central to reconcile any differences between an employee
and the employer. As a result, the research will contribute to labour law
jurisprudence. When it comes to dealing with unfair dismissal disputes, the success
and shortcomings of the arbitration process will be identified. The research will also
help to promote positive economic development and social equity.
27
Twyman 2001 CWRJIL 342.
28
Smit and Van Eck 2010 CILJSA 67.

4
2 Research question

Is CCMA effective in its arbitration for unfair dismissal disputes and what alternatives
can be adopted to improve its effectiveness?

3 Aims and objectives of the study

3.1 Aims

The purpose of this research is to determine whether arbitration, as an alternative

dispute resolution process, promotes fair labour practices, economic development,
and social justice in cases of unfair dismissal. The study aims to:

 identify challenges or gaps in the CCMA's arbitration process when dealing

with unfair dismissal claims;
 to determine whether the CCMA is the best dispute management and
resolution system when dealing with unfair dismissal disputes;
 to determine whether the CCMA continues to strive for organisational
effectiveness.

3.2 Objectives of the study

The objective of the study are:

 to ascertain the significance of promoting an effective, readily available, less

expensive and flexible arbitral procedure in unfair dismissal disputes;

 to recommend best practices / measures to improve the arbitration in unfair

dismissal disputes.

4 Research methodology

1.6.1 The qualitative approach

The qualitative approach to research involves the collection, analysis and

interpretation of data which is non-numerical in nature. Qualitative research is used
to understand the participant’s subjective perception (in this case, the writer’s) of
the realities around him or her. 29 The qualitative approach to research carries many
advantages.30 Because the researcher is closely involved, he or she gains a closer
29
Research Guides 2021 https://libguides.usc.edu/writingguide/quantitative.
30
Research Guides 2021 https://libguides.usc.edu/writingguide/quantitative .

5
view of the subject area.31 The qualitative approach is also distinctive from the
quantitative approach in that it may include the investigation of causes and effects
and suggest solutions to a given problem. This mini dissertation has been
undertaken using the qualitative research method. This will offer a deeper
understanding of the arbitration processes at the CCMA.

As a result of the United Kingdom colonising South Africa, a political umbilical cord
connects the two countries. As a result, the two countries' legal systems are nearly
identical. Therefore, this chapter stipulates how arbitration process in United
Kingdom is tackled when dealing with issues of unfair dismissal in comparison to
South Africa. Furthermore, it establishes the success and shortcomings of the
arbitration process looking at efficiency, accessibility, and flexibility in the United
Kingdom. For example,

it must be remembered that England does not hold a codified Constitution, so any
search for the protection of employees’ rights would be in Employment law. The
legislative framework aimed to make several amendments to the existing framework
surrounding tribunal procedures and in doing so, offered more options for
employees to resolve their disputes. 32 Another example of best practice in the UK
arbitration system is the hiring of third party agencies. 33 This helps in mitigating the
effects of increasing caseload. It will be recommended for South Africa to adopt
these and more other best practices to be discussed as this research progresses.
The study will also make use of the PER referencing style.

5 Relevance for the research unit theme

This research focuses on the effectiveness of the CCMA in dealing with arbitration in
unfair dismissal disputes and will resort with the Law, Justice, and Sustainability
Research Unit of the Faculty of Law under the Justice in Practice sub research unit.
The CCMA endeavours to advance both social and labour justice therefore they form
part of Justice included in the Research Unit.

31
Research Guides 2021 https://libguides.usc.edu/writingguide/quantitative .
32
Budd and Colvin 2008) Industrial Relations 430.
33
Bretten International Labour Law: Selected Issues 36.

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6 Structure of the dissertation

Chapter 1: Introduction

The first chapter provides an overview of the research. This chapter contains the
background to the study, problem statement, research question, study aims and
objectives, research methodology, research ethics statement, relevance to the unit
theme, and literature review and framework of the study.

Chapter 2: Analysis of the arbitration processes and procedures for unfair

dismissal disputes

This chapter explains why it is essential to have arbitration as an alternative dispute

resolution process. Furthermore, it discusses the conciliation process as a first step
in the CCMA for resolving unfair dismissal dispute.

Chapter 3: Arbitration processes for unfair dismissal disputes in the United

Kingdom

This chapter seeks to establish the success and shortcomings of the arbitration
process looking at efficiency, accessibility, and flexibility in the United Kingdom. The
UK jurisdiction has been chosen because it has developed three main categories of
ADR commonly used in workplace disputes: mediation, conciliation and arbitration.

Chapter 4: Comparison of arbitration processes between South Africa and

United Kingdom

This chapter will provide comparison of arbitration processes between South Africa
and the UK.

Chapter 5: Conclusion and recommendations

To address the problems that are encountered by the arbitration process, this
chapter will provide recommendations of the approaches that can be taken into
considerations to help in resolving the problems. Furthermore, a conclusion will be
given on the overview of the study and whether the arbitration process is effective in
matters of unfair dismissal.

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BIBLIOGRAPHY

Literature

Bendeman H "An analysis of the problems of the labour dispute resolution system in
South Africa" 2006 AJCR 81–112

8
Bhorat M and Pauw K "Understanding the efficiency and effectiveness of the Dispute
Resolution System in South Africa: An analysis of the CCMA Data” in CCMA
Conference (25-28 September 2009 Johannesburg) 4-23

Bretten L International Labour Law: Selected Issues (Kluwer Law Hamburg 1993)

Budd J and Colvin A. "Improved Metrics for Workplace Dispute Resolution

Procedures: Efficiency, Equity, and Voice" 2008) IR 460-479

Smit P AND Van Eck BPS "International Perspectives on South Africa’s Dismissal
Law" 2010 CILJSA 46-67

Twyman M "Finding Justice in South African Labor Law: The Use of Arbitration to
Evaluate Affirmative Action" 2001 CWRJIL 307-342

Tarasewicz Y and Borofsky N "International Labor and Employment Arbitration: A

French and European Perspective" 2007 JLEL 349-366

Van Eck BPS "Representation during arbitration hearing: Spotlight on members of

the bargaining councils" 2012 TSAR 23-47

Visser W "A racially divided class Strikes in South Africa, 1973–2004" aksant 40-60.

Zall TA. "Unfair Dismissal in the United States and the United Kingdom: A Procedural
Comparison of Remedies" 2013 CLLJ 433-450

Legislation

Arbitration Act 42 of 1965

Black Labour Relations Regulation Act 48 of 1950

Constitution of the Republic of South Africa, 1996

Explanatory Memorandum to the Labour Relations Act 1995 16 ILJ

Industrial Conciliation Act 15 of 1856

Industrial Disputes Prevention Act 20 of 1909

Labour Relations Act 66 of 1995

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Internet sources

Commission for Conciliation, Mediation and Arbitration 2020 Annual Report

2019/2020 http://www.ccma.org.za (accessed 8 March 2023)

Libguides 2021 Research Guides https://libguides.usc.edu/writingguide/quantitative (

accessed 8 March 2023)

Commission for Conciliation, Mediation and Arbitration 2020 About us

http://www.ccma.org.za/About-Us/Regional-Offices (accessed 29 May 2023)

Commission for Conciliation, Mediation and Arbitration 2020 Advice and knowledge
hub https://www.ccma.org.za/Advice/Knowledge-Hub/Downloads/Codes-Procedures
(accessed 29 May 2023)

Commission for Conciliation, Mediation and Arbitration 2020 Media updates

https://www.ccma.org.za/Media/ArticleID/101 (accessed 29 May 2023)

International Labour Organisation 2020 Mission and objectives

https://www.ilo.org/global/about-the-ilo/mission-and-objectives/lang--en/index.htm
(accessed 29 May 2023)

Sen Amit 2015 The Role of Acas in dispute resolution

http://www.acas.org.uk/media/pdf/8/p/The_role_of_Acas_in_dispute_resolution.pdf
(accessed 29 May 2023

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