Once you learn all about the below factors, presenting your case at the CCMA/Bargaining Council is not going to be that difficult.
One very important factor that an employer always dreads, especially if it is regarding a small to medium enterprise, is when a former employee decides to take the company to the Bargaining Council or the CCMA (Commission of Conciliation, Mediation and Arbitration. Small business enterprises would rather consolidate their business efforts in expanding and growing their businesses instead of wasting time and limited resources to defend labour related matters at the Bargaining Council/CCMA.
The workplace in South Africa is very highly regulated, and if an employed gets taken to the CCMA by a former employee, they should prepare themselves as they might just end up counting their losses. Business enterprises have to ensure that all labour matters are handled correctly and in accordance with prescripts and legislation, you are certain to get the short end of the stick, as it were, at the Bargaining Council/CCMA.
Most employees, if not all of them, can definitely refer a matter of unfair dismissal to the CCMA regardless of whether they actually believe that he or she has been unfairly dismissed or not. Basically, there are some employees who will try to take their chances and just hope that their employer will be found wanting, and that is very often the case.
There was a report from the CCMA in 2015, that they had received a total of 171 854 referrals and this translates to 687 cases daily. They also reported that from these 171 854 cases, 96, 4% were related to unfair dismissals. It will be beneficial to you to ensure that if and when you are taken to the CCMA, you at least know the important factors with regards to the preparation of the case at hand, in order for you to be empowered to properly present a decent case. With that being said, the below has been prepared for what we think is extremely important to know when you appear at the CCMA to defend the dismissal of an employee.
Factor #1 – The notice
In most cases, the very first thing that you will receive from the Bargaining Council/CCMA that indicates that there is a matter that has been referred is a Notice to Attend, this will either be a Con-Arb or a conciliation. There are some cases where the Bargaining Council/CCMA will give each party (employer and employee) a ring to conduct what has been referred to as a Pre-Conciliation. A pre-conciliation is a process in which the CCMA will try to resolve the matter over the phone or by other means before it is scheduled for a much more formal process of conciliation or arbitration. If the pre-conciliation proves to be unsuccessful, or rather, if the parties concerned were not able to settle the matter, the CCMA will then send what is called a notice to attend a Conciliation, Arbitration or Con-Arb. The CCMA will file the notice to attend which will serve as proof that parties have received the same in order to quell any possible disputes that may arise at a later stage regarding the receipt of the notice.
The purpose of the above-mentioned notice is:
- In order to inform the employer party of the referral that has been made to the CCMA.
- In order to inform the employer party of the relief that is sought and of the grounds for the relief.
- In order to advise the employer party of what nature the dispute is.
- In order to inform both parties of the date, time and the venue of the conciliation or arbitration.
- In order to effectively enable all parties to properly and timeously prepare for the upcoming CCMA process.
Factor #2 – Representation
In terms of Rule number 25 of the CCMA, the parties will not be automatically permitted to be represented by an attorney in any matters that concern dismissals that are related to incapacity or misconduct, unless a party has made an application with regards to rule number 25. This rule is when the party at the CCMA would like to be represented by an attorney or any other person, such as a labour consultant. Basically, the CCMA will allow all parties to be represented by the trade union, in case of the employee, or the employer organisations, in case of the employer. The below may represent a party in a dismissal case:
- An official or an office bearer of that particular party’s registered trade union or the employer’s organization.
- An employer party is allowed to be represented by an employee of such party
- An employer party is allowed to be represented by a directory of the company or by one of the members of a close corporation.
However, if both parties have given consent to being represented by a legal practitioner or a labour consultant, the Commissioner is also allowed to let the parties be assisted in the proceedings in this regards. If the parties have not given any consent, any party could bring an application to be represented by a legal practitioner, labour consultant or any other third party for that matter, but there are still certain requirements that need to be met as per Rule number 25 in conjunction with rule 35 of the CCMA.
Factor number 3 – The primary issues
Before the case can proceed to a much more formal process of arbitration, all parties will need to bring preliminary issues to the Commissioners attention. Their issues are the type that a party thinks are necessary that the Commissioner should take into consideration before commencing with the matter. Some of these include factors like jurisdictional issues, the lateness of the referral by the employee, etc. The prescribed timeframe for an employee to refer a matter to the CCMA after they have been dismissed by the company is 30 days. If the employee does not refer the matter within this timeframe, they will be obligated to file for condonation. What this means, is that the employee will need to apply and motivate why the CCMA should entertain the claim that is late and is also outside of the prescribed time frame.
Factor number 4 – The process
When it comes to unfair dismissal cases, there are usually two processes, they are Conciliation and Arbitration, Con-Arb is when these two processes, are combined into one process.
What is conciliation?
Conciliation happens when the Commissioner tries to assist the parties by reaching a settlement without having to delve into the merits of the matter, so basically, the Commissioner will help facilitate a settlement agreement by allowing parties to negotiate the agreement.
What is arbitration?
If the parties are not able to reach a settlement and based on the kind of notice they have received, the matter will proceed to Arbitration immediately. If the notice indicates that the process to attend will be for conciliation only, or if the employer files for an objection to opposing the Arbitration process to proceed straight after Conciliation, then the CCMA will need to schedule another date by sending a notice to attend an Arbitration process.
Arbitration is generally a lot more formal, and it is basically like a mini court, where the employer will need to have proof that the dismissal of the employee was fair, and that it is done by presenting evidence and also calling the witness if necessary.
Factor number 5 – The application for the matter to be dismissed
If for instance, the referring party is not present at the Arbitration proceedings, you will be able to bring an application that the matter is dismissed, so basically, you will get thrown out of the CCMA. The commissioner will be looking into things like whether the employee was correctly notified of the arbitration meeting, and if the Commissioner is happy that everything has been properly done, and that there are no requests for a postponement by the employee, either the employee is ill and therefore is not able to attend, the Commissioner may then dismiss the matter.
Factor number 6 – The decision
Once the matter has gone through the Arbitration process, the Commissioner will then adjourn the case in order to prepare their decision, this decision is known as the Arbitration Award. This Award will be sent to the parties within two weeks after the arbitration process. This Award will basically show whether the Applicant has been fairly or unfairly dismissed. The Arbitration Award can also pronounce the following if the dismissal was found to be procedurally and or substantively unfair:
- Retrospect reinstatement
The award binds two parties together, however, the parties can also take the matter in review by referring it onto the Labour Court if one of the parties maintain that they still have grounds for the matter to then be reviewed. The parties are allowed a six-week window after the receipt of the Arbitration Award to file for a review with the Labour Court.
Even though there are some other factors that are not mentioned above, that could take place when a matter has been referred to the CCMA, If you are familiar with the above-mentioned factors, taking your case to the CCMA, will not be difficult to do.
What exactly does the CCMA do?
- Arbitrate certain types of disputes which remain unresolved after conciliation
- Conciliate disputes in the workplace
- Conducts inquiries by arbitrators
- Facilitate consultations about larger-scale dismissals because of operational requirements
- Help determine disputes regarding demarcation between areas and sectors
- Establishing picketing rules
- Compline and publish information and stats regarding its activities
- Facilitate the establishment of workplace forums and the statutory councils
- Consider applications for accreditation and subsidy through private agencies and bargaining councils
- Administer the Essential Service Committee
Tips To CCMA-Proof Your Small Business
– Always follow procedure
Manage the people within the labour law. Try and gain an understanding of how to deal with a disciplinary meeting, abuse of sick leave, non-performance and so on, and always follow the procedure to the T.
– Be consistent
Treat each and every employee consistently. For example, if an employee has a day off for doing a good job on something, other employees should get the same opportunity. When dealing with problems, always be consistent.
– Be compassionate
Not only will the CCMA be hard on an employer who lacks compassion, but when you show compassion for your employees, you are demonstrating good leadership and that is always good for business.
– Be diligent
When dealing with the specifics of the job, be ruthless. Deal with each issue as it arises instead of ignoring it and hoping for the best. When it comes to absenteeism, dishonestly, non-performance, and all the other factors that apply to your staff, deal with it decisively.
– Have everything in writing
Written records are proof of instruction, and event, and feedback. Having records will help you to get rid of any disputes and also increase the clarity of your instructions. When it comes to the dismissal process and performance management, the written proof is crucial.
– Ensure salaries are fair
The South African legislative framework is extremely clear when it comes to how salaries should be handled and unreasonable deviations from this could be very costly. If your employee does the work that they are supposed to do and they fulfil their duties correctly, or above expectation, they will need to be compensated.