In an attempt to reduce the spread of Covid-19 and to mitigate the risk to the public, the CCMA is not operating at full capacity during Alert Level 4 and have put several measures in place to reduce risk during this time.
Under Level 4, parties cannot submit hard copies of referral forms to the CCMA. Instead, parties can refer disputes by electronic mail and fax as allowed for by rule 7 of the CCMA rules. Referrals may also be electronically signed or confirmed if proof of confirmation can be stored safely and retrieved or printed when needed.
Save for exceptional circumstances, conciliation hearings will be conducted telephonically or through digital online platforms approved by the CCMA, such as Skype or other video conferencing programs. Which form is used will depend on what resources are available to all parties concerned. If this leads to conciliation not being completed within 30 days of referral, and if no extension to this period is agreed to, a certificate of the outcome will be issued. If parties choose to settle the dispute, the settlement agreement shall be recorded electronically and sent to both parties for electronic signature. If an electronic signature is not possible, parties may agree on an acceptable method by which to record agreement which will then be filed with the CCMA.
Application proceedings such as condonation, recission, variation etc. will be dealt with in terms of written submissions. Where this is not possible, video conferencing facilities will be used. If oral evidence is required by parties who do not have access to electronic communication, the matter may be postponed to a date when conditions related to the pandemic allow for a hearing in person, or in a way prescribed by the Commissioner. Written submissions may be confirmed by electronic signature or other acceptable means of proof, such as SMS, WhatsApp, voice recording etc. not in the public domain. Rulings on these matters will be sent to parties electronically.
Before an arbitration hearing may be scheduled, the CCMA i.t.o Rule 20 will direct parties to hold a pre-arbitration conference to agree on certain matters including whether the parties agree to hold the arbitration at the employer’s premises or to conduct proceedings through video conferencing. If parties do not agree, reasons must be included in the pre-arbitration minute. Parties may further agree to shorter periods of notice of set-down, remote admission of evidence through video conferencing, or other methods by which evidence may be led. These agreements must be recorded in writing and submitted to the CCMA.
The CCMA may hear the matter on the papers as allowed for by Rule 19, by directing the Applicant to deliver a statement of case setting out the facts of the matter and inviting an answering statement from the Respondent within a specified period. Parties may also be asked to agree on what oral evidence may be delivered by statement or affidavit, which must be submitted to the CCMA electronically 7 days before the arbitration. The CCMA will communicate with parties via e-mail or other means available and exercise discretion on how the matter will be dealt with. Subpoenas may also be issued electronically. The arbitration award will be sent to the parties electronically within the set timeframes upon completion of the hearing.
In cases where parties must appear at the CCMA in person, all Regulations and Directives issued in terms of the Disaster Management Act shall apply. Persons entering the CCMA buildings will be screened, must wear a face mask, must apply hand sanitizer, and adhere to social distancing rules. Only parties to the matter, not exceeding 10 people and subject to social distancing requirements, shall be permitted to enter the venues. Observers etc shall not be granted access.
A party who objects to proceedings taking place as described above must submit a notice of objection and reasons to the CCMA and the other party in writing. The CCMA will then decide whether the matter should proceed or be postponed.
Where proceedings are conducting using video conferencing facilities, certain protocols should be followed to ensure the matter proceeds in an orderly manner. Participants must ensure that there is no ambient noise in the room which can interfere with audio quality during the hearing, participants must mute their microphones when not speaking, parties should only speak on invitation by the Commissioner, participants may only leave the hearing when proceedings have concluded or as directed by the Commissioner, and the Commissioner shall give instructions as to the recording of proceedings. Where the CCMA is not the host of the video conference and cannot record proceedings, the hosting party must record the session and submit the recording to the CCMA at the close of the proceedings. A signed statement of confirmation that the recording has not been tampered with must accompany the recording.
These arrangements will remain in force during Alert Level 4, or until the CCMA amends its directives.
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