CCMA

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While it can be extremely difficult to not immediately sign on the dotted line after getting your job offer, the importance of reading your contract thoroughly and understanding the terms of your contract cannot be understated.

 


The law makes it essential for employers to act with great care and expertise in gathering evidence and in designing and applying their disciplinary policies. The Labour Courts are most intolerant of employers who do not follow their own disciplinary policies and who cannot justify their dismissal decisions based on the facts of the case at hand.

 


There are many different reasons that employers lose at arbitration despite their confidence that they would win. Some of those reasons include:


In common law employers and employees have the obligation to treat each other fairly and within the law. 


Where the employer fails to attend an arbitration hearing the arbitrator is entitled to continue without the employer unless the arbitrator is aware of an acceptable reason for the employer’s absence. As the arbitrator has little or no way of testing the truth of the employee’s evidence he/she will most often accept the employee’s version and find against the absent employer. This is called a default judgement.


We’ve all been in a situation where we were at our place of employment but wanted to be somewhere else. Is it correct to use sick leave to attend leisure activities?


In the case of Maepe vs Commission for Conciliation, Mediation and Arbitration & another (CLL Vol. 17 June 2008) a senior commissioner at the CCMA was brought to a disciplinary hearing on charges of sexual harassment and improper or disgraceful conduct. A CCMA receptionist had accused the senior commissioner of having professed his love for her, blown her kisses and told her that he clutched her photo to his chest. 


 There is currently no law in South Africa that requires a person to take the Covid-19 vaccine if they do not want to.


It happens too often that I receive panicked phone calls from employers who had received an unfavourable arbitration award in respect of a CCMA case that they never knew existed. That is, the employer had never received a summons to appear at the CCMA. In one such case the award required the employer to pay many tens of thousands of rands to an ex-employee. This can happen for a number of different reasons including:


The CCMA’s policy guidelines for misconduct dismissal arbitrations that became effective in January 2012 increases the obligation on commissioners to conduct themselves properly when arbitrating such matters. 


The Labour Relations Act of 1995 (LRA) makes it very easy for employees to challenge alleged unfair dismissals and other unfair practices at private or statutory dispute resolution forums. Such disputes may, by agreement, be dealt with via private (non-statutory) dispute resolution forums such as AMSA, AFSA, Tokiso and others. On the other hand the statutory dispute resolution forums established by the LRA include:


Disciplinary warnings are given with a view to correcting employee behaviour. But, what is the difference if the employer policy says that warnings have an expiry period and must be removed from files, or alternatively, the warning expires but if kept on record. Will this be relevant? Just one of the questions on warnings that Ivan Israelstam addresses this week.  


When an employer suspects that a group of employees may be cooperating in some way - in dishonest acts to defraud the company financially, or remove property - there is the suspicion of collective guilt. This week Ivan Israelstam examines how the Commission for Conciliation Mediation and Arbitration (CCMA) and labour courts have viewed this kind of collective behaviour. Ivan uses cases won and lost to demonstrate how crucial it is to consider the circumstances of the particular case. A Labour Appeal Court case shows what the employer needs to successfully prove such a case.


 Labour law provides scant protection for employers. That is the opinion of Ivan Israelstam. This week Ivan explains why he holds that opinion, and gives advice to employers on how he believes they should react, and protect their businesses going forward.


This week Ivan Israelstam explains that the CCMA has produced guidelines, which will guide the work of commissioners arbitrating dismissal disputes. The guidelines explain that rulings should be lawful, reasonable, and procedurally fair, which gives effect to the Constitutional right to fair administrative action (s33(1)).


The recent Labour Court judgment in Botes v City of Joburg Property Company SOC Ltd and Another [2021] 2 BLLR 181 (LC) put it beyond doubt that issues which fall under section 23 of the Constitution, the right to fair labour practices, are governed by the principles of procedural and substantive fairness. Furthermore, the Court indicated that such issues are primarily dealt with through the Labour Relations Act 66 of 1995 ("LRA"). Therefore, when dealing with a dismissal dispute or unfair labour practice the question should be whether the alleged conduct sought to be impugned was procedurally and substantively fair, not lawful.


This week,  Ivan Israelstam applies decided cases of the Commission for Conciliation Mediation and Arbitration (CCMA) to explain what should be considered before an employer takes a decision to dismiss an employee. The examples also highlight some inconsistecies in the decisions of the CCMA, which do make the employer's job more difficult.


South African labour law - often criticised for restricting recruitment because employers believe that they cannot dismiss an employee. Whereas, as Ivan Israelstam points out, investing the time and money into good quality training on labour law for management, will pay off many times over in costs saved from adverse CCMA and Bargaining Council decisions.


This week Ivan Israelstam explains the history of a case, which went all the way through to the Constitutional Court. The case concerned employers' rights over dismissal decisions. Ivan explains the final outcome.


Employees do sometimes lay frivolous and vexatious claims against employers at the CCMA.  However, employees who do so may be ordered to pay the employer's legal costs. Even so, the employer should not give employees easy claims by failing to behave legally and responsively; and should definitely not underestimate the importance of preparing a response - even if the employees claims are spurious.

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