Since November 1996, when our new Labour Relations Act was brought into being, we saw the start of the Commission for Conciliation Mediation and Arbitration (CCMA) and since then we have seen complaints going to this Commission at the rate of 500 per day. The majority of these complaints have been about single unfair dismissals and the largest sector affected by this, has been the retail sector. In many cases, the employer cannot be represented by a lawyer and even in some cases where they could be represented by a lawyer, such representation would be far too expensive.
It is therefore necessary for each and every business owner (employer) to understand how the Arbitrations work and how to properly defend themselves at the CCMA and Bargaining Councils. Every employer must understand that the CCMA conducts a dispute resolution on a two-stage basis, i.e. the first hearing is conciliation where a commissioner tries to mediate between the two arguing parties, but if these mediation fails, the matter goes on to arbitration. At the arbitration, the Commissioner (Arbitrator) makes a final decision and this decision could adversely affect the business. There is no appeal against this decision and only in very limited circumstances, a review. In terms of Labour Legislation, the Arbitrators have enormous powers and they have in certain circumstances, the ability to reinstate staff into their old positions and even give them awards, sometimes equal to 12 months’ salary (or any lesser amount the Arbitrator might deem fair). If in fact the employer has dismissed for a good reason and has followed the proper process effecting the dismissal, then there is no reason why the employer should lose at the arbitration level at the CCMA. The employer merely has to understand the process and have a small understanding of the rules of the process and effectively bring proper evidence to the CCMA. In certain circumstances, there might be technical problems and then it would be worthwhile going to a lawyer for advice and even representation.
However, the majority of cases are reasonably straightforward and simple and the employer has the ability to represent him or herself. It is necessary to ensure that prior to the arbitration, to ascertain exactly what the nature of the dispute is about. This can be done at the conciliation stage. It is also necessary to ensure that all the paperwork that has led to the dismissal is properly copied and distributed to the witness, the employee (or his or her representative), the arbitrator and one for you. Once you have four copies of all the paperwork, including documents such as warnings, notification to attend disciplinary hearing, minutes of disciplinary hearing and findings of disciplinary hearing, this will make the arbitrator’s job far easier in finding that the dismissal was both procedurally and substantively fair. 2. /
It is also necessary to ensure that all the witnesses you use at the disciplinary hearing are present at the arbitration as you cannot be heard to say that you will bring the witness at a later stage or only if necessary. An employer must remember that you have to show the arbitrator that there was a good reason to bring the employee to a disciplinary hearing and that you followed a very fair process at that disciplinary hearing. It might even be necessary for you to bring the chairperson of that disciplinary hearing to the arbitration.
You can do no harm by getting some advice prior to your going to the CCMA for the Arbitration. Invariably, a two-minute discussion with a labour lawyer or an official at the Department of Labour can give you some tips as to how you would approach that particular case. These tips need not cost you anything and will certainly save you a lot of trouble at the CCMA.
It is also useful to check with the CCMA on a regular basis whether the case has been given a case number and if so, whether there has been allotted a time and date for a hearing. There is a Case Management number, a Call Centre, at 0861-161616 which should help you to ascertain where about in the system your case is. If you are not present for your case, this could lead to a negative award against the employer.
Contact Bernard Reisner 021 423 3959 or e-mail firstname.lastname@example.org