Hospitality and Travel Jobs: Labour Law Article
Question 1: In what instances could a business such as a Golf Estate be taken to the CCMA ?
An employee can take the business such as a Golf Estate to the CCMA (Commission for Conciliation, Mediation and Arbitration) in respect to an alleged unfair dismissal on the grounds of misconduct, incapacity, operational requirements, unknown reasons or for a constructive dismissal.
Furthermore, an employee can alleged an unfair labour practice and can refer a labour dispute to the CCMA regarding unfair conduct relating to a promotion, a demotion, reduction in salary, unfair suspension or a failure to reinstate or re-employ a former employee in terms of an agreement.
Another reason an employee can take a business such as a Golf Estate to the CCMA would be on the grounds of alleged unfair discrimination relating to race, colour, sex, marital status, family responsibilities, pregnancy, age or religion.
Question 2: How frequently are employees/ applicants for employment using the CCMA i.e are cases increasing ?
Year on year there has been an increase in the number of labour disputes referred to the CCMA. Unfair dismissal disputes continued to account for the largest percentage of the nature of cases referred to the CCMA. Other referrals relate to unfair labour practices, mutual interest disputes, collective bargaining and severance pay.
Question 3: Do all employer / employee labour disputes have to be referred to the CCMA or are there other dispute resolution fora ?
Generally, labour disputes are referred to the CCMA. However, labour disputes can also be referred to bargaining councils which are voluntarily established bodies comprising registered trade unions and employer associations and are registered by the Department of Labour in respect to particular sectors and areas.
Labour disputes can also be referred to private arbitration in terms of the Arbitration Act.
Question 4: Processes at the CCMA
When a dispute is referred to the CCMA or a Bargaining Council, the parties are required to go through the process of conciliation before the matter can be referred to arbitration.
A conciliation hearing is a process where a Commissioner facilitates possible settlement discussions between the parties.
An arbitration hearing is a more formal process than conciliation. The Commissioner will record the proceedings. The Commissioner makes a formal decision in term of handing down an arbitration award. The arbitration award is legally binding on both parties, although the parties can apply to the Labour Court for a review if they are dissatisfied with the arbitration award.
Question 5: What is the burden of proof ?
For instance, during a disciplinary hearing there are a number of factors that an employer needs to prove.
At the disciplinary hearing it is necessary for the employer to show proof, on a balance of probability, that the employee committed the act of misconduct, for which he or she has been charged. This is essential prior to finding the employee guilty and deciding on a suitable punishment. By the same token the employer also needs to prove that the desired punishment is justified, i.e “the punishment must fit the crime”.
Article published by Bernard Reisner, a labour relations consultant. His contact details are as follows:
W. Tel no 021 423 3959
Fax 021 423 2105
Cell 082 433 8714