BRING PROOF TO HEARINGS

BRING PROOF TO HEARINGS

To have a chance of winning a case at CCMA a party must present proof to the
arbitrator. In the days when I arbitrated CCMA matters parties argued their cases
before me very vehemently, passionately and in great detail but often brought
little or no support for their arguments. They were then most surprised when they
lost the case.
What parties do not understand is that they are responsible for presenting clear,
relevant and persuasive facts in support of their cases. All arbitrators are
required to follow the rules of procedure and principles of justice during the
arbitration hearing. These requirements include the paramount principle that the
arbitrator must base his/her findings primarily on the facts presented at the
arbitration hearing.
It is not up to the arbitrator to bring the evidence or to show that the evidence
brought constitutes proven fact. The arbitrator merely creates the environment in
which the parties can present their evidence if they have brought it with them. In
this sense the arbitrator acts as a master of ceremonies. That is, he/she
manages the following arbitration process:
 opening statements are made by each party outlining what they intend to
prove
 the parties present their cases via witnesses, documents and other evidence
 if the employer goes first then, each time the employer’s representative is
finished questioning one of his/her witnesses, the employee has a right to
cross examine that witness
 the arbitrator has the right to ask the witness questions for clarity and the
employer is allowed to re-examine the witness, but only regarding the issues
raised during cross examination
 once all the employer’s witnesses have been heard the employee presents
his/her case according to the above listed steps.
 Each party presents a closing statement
 The arbitrator adjourns to assess the evidence and to make the award.
While the arbitrator is required by law to give you, via the above process, every
opportunity to present the evidence that you have brought you are likely to lose
the case if you do not take full advantage of this opportunity.
In NUMSA obo Daki vs Colven Associates (2006, 9 BALR 877) the employee,
who was employed by a labour broker, was dismissed for being involved in a

fight with a colleague at the premises of the employer’s client. The client had
reported the alleged fight to the labour broker and instructed the broker to
remove the employee from the client’s premises. The labour broker then placed
the employee in its pool of people waiting for employment but ceased paying the
employee. The arbitrator decided that:
 The employer’s actions constituted a dismissal
 The dismissal was unfair because the employer (the labour broker) had relied
only on the allegations of the client and dismissed the employee without proof
that he had been involved in the fight.
 The employer was required to reinstate the employee.
Thus, in many cases, a party may lose, not because there is no evidence, but
because he/she failed to bring the evidence to the arbitration hearing or because
the evidence was not properly presented and converted into proof.
The arbitrator’s role is to manage the flow of evidence during the hearing but not
to bring the evidence. His/her duty is to collect the evidence brought by the
parties and then adjourn the proceedings to evaluate the evidence.
Therefore, if you are an employer or an employee party and you have an
arbitration pending you must immediately:
 Obtain advice form a reputable labour law expert on how to gather all the
evidence needed at arbitration
 Use the labour law expert to make sure that your evidentiary documents,
tapes and other evidence are carefully sorted into the right sequence
 Get assistance form the expert as to how to prepare your witnesses in a legal
yet effective manner
 Ensure that your witness evidence dovetails with your other evidence
 Learn from the labour law expert how to anticipate what evidence your
opponent is likely to bring and how to counteract it.
To book for our 17 September webinar on WINNING AT THE CCMA IN THE
COVID ENVIRONMENT please contact Ronni on [email protected]
or 0845217492.

GET THE @#&*!!€» OUT OF MY FACE!

GET THE @#&*!!€» OUT OF MY FACE!

When an employer temporarily requires an employee to vacate its premises and
to stop performing his/her duties this is called ‘suspension. The effect of a
suspension is that the employee is not allowed to return to work until the
employer instructs that he/she may do so. Such suspensions normally occur:
 While the employer is investigating misconduct/poor performance allegations
against the employee
 While the employer and/or employee are preparing for a disciplinary hearing
 After the employer has decided that the employee is guilty of misconduct/poor
performance.
In our experience the reasons that motivate employers to suspend employees
include:
 To remove the employee from the workplace as a means of preventing
him/her from causing further harm by repeating the alleged misconduct or
poor performance
 To prevent the employee from interfering with the investigation instituted
against the employee
 To avoid disharmony at the workplace that could be caused due to the
employee’s awareness that he/she is being investigated
 As a result of the employer’s anger. That is, the employer is so furious with
the employee due to his/her alleged actions that the employer wants the
employee ‘out of my sight!’
 As a means of retribution. The employer wishes to humiliate or demean the
employee or otherwise punish him/her for the alleged offence.
Often, especially when the employer evicts the employee in a fit of anger, it is
unclear whether the employee has been suspended (evicted temporarily) or
whether the employee has been fired. This is because the employer shouts at
the employee to ‘get the @#&*!!€» out of my face!’
Regardless of whether such evictions are meant as suspensions or dismissals
the affected employees more often than not go to the CCMA or bargaining
council claiming unfair dismissal and/or unfair suspension. Especially where the

eviction takes place while the employer is in a fit of anger the employer loses the
case.
Labour law does not prohibit employers from suspending employees but does
allow employees to challenge the fairness of suspensions. Section 186(2)(b) of
the Labour Relations Act (LRA) defines as a type of unfair labour practice “the
unfair suspension of an employee”. Section 191(1) allows an employee to refer
an alleged unfair labour practice to the CCMA or to a bargaining council. Where
the employer has suspended the employee for an unfair reason or in an unfair
manner the employer can be forced to pay the employee compensation or lost
wages or to lift the suspension.
In the case of CEIWU obo Khumalo vs SHM Engineering cc (2005, 10 BALR
1009) the employee, a boilermaker was accused of failing to obey an instruction
from his superior and was therefore suspended for six weeks. The employee’s
excuse for defying his superior was that his superior had screamed at him. The
arbitrator found that this was not a sufficient reason for disobeying a reasonable
and lawful instruction and that the employee’s behaviour constituted gross
insubordination. However, the arbitrator found the suspension to be unfair and
ordered the employer to pay the employee for the full period of the suspension.
The arbitrator’s rationale for this was that, while the suspension might have
started out as a “holding” measure, it became punitive due to its unreasonably
long duration.
In the case of Sajid vs Mohammed NO & others (1999, 11 BLLR 1175) the
employee, who worked as an Imam for a mosque, was suspended from duty.
The charges against him included removal of copies of notices, persuading
congregants to make false statements and failure to attend prayers. The Labour
Court found that there was no evidence to prove that there had been a
breakdown in the employment relationship and that the suspension had been
unfair. The Court ordered the employer to lift the suspension.
In the case of MEC for Tourism and Environmental Affairs Free State vs
Nondumo & others (2005, 10 BLLR 974) the employee was suspended after
being charged with several counts of misconduct. The Labour Court found that
the suspension was unfair and ordered the employer to pay the employee
compensation and lost pay amounting to R840 000.
In the light of the above employers are advised to avoid suspending employees
unnecessarily or due to anger and to obtain expert advice before acting against
employees.
To access our debate on thorny labour law topics please go to
www.labourlawadvice.co.za and click on the Labour Law Debate icon in the top
menu.

HEARING CHAIRPERSONS MUST BE IMPARTIAL

HEARING CHAIRPERSONS MUST BE IMPARTIAL

Employers too often get rid of employees for reasons unacceptable in law. Some of these reasons include:
 The employer dislikes the employee for reasons unrelated to the workplace.
 The owner wants a more attractive secretary
 The employee is unwilling to grant her superior sexual favours
 The employee has clashed with a key executive who has threatened to resign
 The employee has reported the employer to SARS, the Department of Labour
or Department of Health for violating the law
 The manager is under pressure to perform and uses the dismissed employee
as the scapegoat for performance problems
 The employer feels that it is time that it shows the workers who is boss and
picks on the first employee who makes a mistake
 The shop steward stands up for the employee’s rights and is labelled as a
trouble maker.
Employers then conspire to get rid of such undesirables through the use of a
number of tricks including:
 Firing the employee orally and then pretending that the employee absconded
 Framing the employee for poor performance or misconduct
 Provoking the employee into committing misconduct
 Setting up a disciplinary hearing where the presiding officer has been primed
in advance to fire the employee.
This latter trick clearly renders the presiding officer biased. This constitutes a
serious breach of the employee’s right to fair procedure. Where the employer is
caught out using such a biased presiding officer the CCMA has no mercy. The

employee is likely to be reinstated with full back pay or to be granted heavy
compensation to be paid by the employer.
Such bias on the part of a disciplinary hearing chairperson can be discovered in
a number of ways including:
 The chairperson grants the complainant (person bringing the case for the
employer) the opportunity to obtain more evidence, take adjournments or
interrupt the employee; but does not grant the employee similar rights.
 The presiding officer ignores evidence brought by the employee
 The chairperson is chosen to hear the matter despite having been the one
who caught the employee breaking the rule.
 The chairperson says things early in the hearing that indicate that he/she has
decided in advance that the employee is guilty.
For example, in the case of Fourie & Partners Attorneys obo Mahlubandile vs
Robben Marine cc (2006, 6 BALR 569) the employee was dismissed for
attempting to remove several frozen chickens that he had hidden in a bucket.
The arbitrator accepted that the employee was guilty of the offence but still found
the dismissal to be unfair. This was primarily because the chairperson of the
disciplinary hearing had revealed his bias by asking the employee at the
beginning of the hearing “do you have an excuse for stealing the chickens?”
In South African Policing Union obo Moorcroft vs South African Police Service
[2018] 11 BALR 1192 (SSSBC) the employee, who had been dismissed for
calling a colleague a “dom apie”, was reinstated. This was partially due to the fact
that the arbitrator found that there was a reasonable apprehension of bias of the
presiding officer because of his historical relationship with the accused.
The fact that arbitrators do not hesitate to punish biased or inept presiding
officers means that employers should:
 resist the temptation to ‘fix’ the outcome of disciplinary hearings in advance
 avoid misusing disciplinary processes to pursue private agendas
 ensure that only impartial and properly trained persons chair disciplinary
hearings.
To access our debate on thorny labour law topics please go to
www.labourlawadvice.co.za and click on the Labour Law Debate icon in the top

ARBITRATION FEES ADD INSULT TO INJURY

ARBITRATION FEES ADD INSULT TO INJURY

It is extremely dangerous for any employer to dismiss an employee unfairly. This is because South African labour law strongly protects employees. The forums provided by the Labour Relations Act (LRA) to carry out labour dispute resolution include:

 

  • The Centres for Dispute Resolution attached to the numerous bargaining councils established in South Africa

 

  • The Commission for Conciliation, Mediation and Arbitration (CCMA)

 

  • The Labour Court

 

  • The Labour Appeal Court.

 

Many employers, via bitter experience, will already be aware that going to any of these forums can be extremely costly. Such employers will be aware that, should things go wrong with a dismissal, they may have to pay the following:

 

  • A settlement amount in order to avoid having to go to court or arbitration

 

  • Legal fees to be represented at arbitration or court

 

  • The legal fees of the employee

 

  • Retrospective back pay to employees who the courts or arbitrators have reinstated

 

  • Compensation to employees who they have been found to have dismissed unfairly.

 

Most employers will however be unaware that, in addition to the hugely expensive costs listed above, they may also have to pay arbitration fees to the CDR or CCMA).

 

I will deal with each of these in more detail:

 

OUT OF COURT SETTLEMENTS

The first stage of labour dispute resolution is conciliation. Here a CDR or CCMA commissioner attempts to mediate an out of court settlement between the employee and employer. Especially where the employer comes to realise that it messed up the dismissal it lands up agreeing to pay a substantial settlement amount to make the problem go away. Due to the fact that such settlements are made by agreement there is no legally prescribed maximum limit to the amount thereof.

 

LEGAL FEES AND THE EMPLOYEE’S LEGAL COSTS

Should the employer’s case be found to be frivolous and/or vexatious it may have to pay, in addition to its own legal fees, a significant portion of the employee’s legal fees. This may occur when the court/arbitrator finds that the employer was clearly in the wrong and/or defended the case unreasonably.

 

RETROSPECTIVE BACK PAY

Where the arbitrator or court finds that the dismissal was unfair it may require the employer to take the employee back and to pay the employee remuneration lost between the date of dismissal and the date of the reinstatement order. (Such back pay is limited to a maximum of 12 months for ordinary unfair dismissals and 24 months for automatically unfair dismissal)

 

COMPENSATION

Even where reinstatement is not ordered the employer may be required to pay the employee compensation in recompense for unfairly depriving him/her of his/her job. (Such compensation is limited to a maximum of 12 months for ordinary unfair dismissals and 24 months for automatically unfair dismissal)

 

ARBITRATION FEES

In terms of the little known section 140(2) of the LRA the arbitrator may charge the employer an arbitration fee where it is found that a dismissal for misconduct or incapacity was procedurally unfair. For example, in the case of Martini and others vs Galata Eksport Chain cc (2006, 8 BALR 836) the employees were dismissed after 20 oriental carpets worth R 800 000 went missing. The arbitrator found that the employer had good reason to dismiss the employees but that, because the employer had failed to give the employees a fair hearing, the dismissal had been procedurally unfair. He/she therefore ordered the employer to pay the CCMA an arbitration fee in terms of section 140(2) of the LRA. It is uncertain what the intension of this fee is. Perhaps it is for wasting the CCMA’s time by failing to follow procedures that every employer ought to be aware of.

 

In the light of the above employers are advised to:

 

  • Make sure that they know and fully understand all aspects of labour law

 

  • Use that knowledge to comply with the law when dealing with employees. 

 

To register for our 16 July webinar on Investigating in the Covid Environment please contact Ronni on [email protected] or 0845217492.

HEARING CHAIRPERSONS MUST BE IMPARTIAL

EMPLOYERS CANNOT HIDE BEHIND THE CORPORATE VEIL

Many employers try to evade the law by closing down one business and opening another. However, this ploy has become less and less likely to succeed. Especially where the employer opens the same business under a different name and/or in a different place, the new business could be found liable for the compensation payment award made against the old business.

 

The new business might be registered as a separate company or close corporation to the old one which would normally, in terms of the Companies Act, protect it from  liability for any legal obligations of any other entity. However, arbitrators at the CCMA and bargaining councils as well as judges in the Labour Court may be willing to ignore this corporate protection where they deem it appropriate. This practice of ignoring the Companies Act protection is known as ‘piercing the corporate veil’ because it breaks through the protective shield behind which the employer is hiding. This the courts and arbitrators might do where:

 

  • They believe that the employer is purposely switching businesses in order to evade labour law compliance

 

  • There is a clear and close connection between the old and new business

 

  • The employee could lose out if the corporate veil is not pierced.

 

For example, in the case of Marllier vs G7 Technologies cc & Another (2004, 4 BALR 480) the employer retrenched its production manager while the owners of the employer were still running other similar profitable businesses. The CCMA found that:

 

  • The first cc had not been closed down for genuine operational reasons but rather for the convenience of the owners

 

  • The employer had failed to consult with the employee before retrenching him

 

  • The business of the second cc was so intertwined with that of the first one that they could be regarded as a partnership

 

  • The owner’s reliance on the juristic personality of the second cc as a means of avoiding liability for the employee’s retrenchment justified the piercing of the corporate veil

 

  • The dismissal was unfair

 

  • The employer had to pay the employee six months’ remuneration as compensation for the unfairness.

 

In the case of Domingo vs Ad-Bag Advertising CC (2008, 7 BALR 646) the arbitrator found that the dismissal was unfair and awarded the employee nine months’ remuneration in compensation. However, the arbitrator lifted pierced the corporate veil and found the two owners of the business personally liable for the payment of this compensation despite the fact that officially the employer was a close corporation. This was because the owners lied during the hearing and because there was a danger that the business might not pay the compensation amount due to its impending closure.

 

In the light of these decisions it is most important for employers to:

 

  • Act cautiously before moving their business operations from one company or cc to another

 

  • Ensure that any such move is carried out for legitimate reasons

 

  • Ensure that the rights of employees will not be unduly prejudiced by the transfer of the business operations

 

  • Avoid misusing the ownership of other companies in order to get rid of employees

 

Employers must also ensure that when considering retrenchments:

 

  • There are truly no alternatives to the loss of jobs

 

  • Potential retrenches are properly consulted

 

  • The whole process is managed under the guidance of a labour law expert.

 

To attend our 14 May 2010 seminar in Cape Town on CHANGES AND DANGERS IN LABOUR LAW please contact Ronni at [email protected] or on 0845217492 or (011) 782-3066.

 

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