In the interests of resolving labour disputes CCMA commissioners have been given a wide variety of powers including the power to:
- Subpoena witnesses and documents
- On authorisation, enter and inspect any premises on which any relevant document or other object is to be found
- On authorisation, remove and inspect any relevant document or other object
- Take from persons on the premises any statement relevant to the matter
- Make a finding that a person is in contempt of the CCMA
- Attempt to settle labour disputes amicably
- Hear evidence at arbitration hearings
- Award employees reinstatement or compensation in respect of disputes that the LRA allows the CCMA to arbitrate
- Dismiss applications lodged with the CCMA
- Make default awards against employers who fail to attend arbitration hearings
- Make rulings on matters such as:
- The jurisdiction of the CCMA to hear specific matters
- The right of parties to be represented at conciliation and arbitration hearings
- Applications for variation or rescission (cancellation) of an arbitration award
Specifically, amongst the most important and most frequently used powers that CCMA commissioners have are to decide whether a dismissal is fair or not. In deciding whether a dismissal is fair the commissioner has the power to decide whether a dismissal for misconduct was the appropriate sanction in terms of item 7(b)(4) of Schedule 8 of the LRA. This means that, even where the employer proves conclusively that the employee was guilty of the misconduct, the commissioner still has the power to decide whether the dismissal was a fitting punishment or whether some other corrective action was appropriate.
In the light of this power conferred by the LRA for commissioners to decide on the appropriateness of the dismissal sanction employers, trade unions, employees and other interested parties have become confused by the finding of the Supreme Court of Appeal in the case of Rustenburg Platinum Mines Limited vs CCMA and Others (SCA case number 598/05 as reported in CLL Vol.16 No. 4 November 2006). In this case a Mr Sidumo was dismissed for failing to do his duty as a security patrolman. One of the several reasons that the CCMA arbitrator overturned the dismissal was that Sidumo had, in mitigation, a clean disciplinary record during a service period of 15 years.
The Supreme Court of Appeal found that:
- Even if the commissioner advances reasons (such as mitigating circumstances) that validly suggest that dismissal might not be appropriate, this does not mean that the dismissal must be overturned if there are other factors that militate in favour of dismissal;
- CCMA commissioners do not have the power to replace dismissal decisions made by employers with other corrective action such as written warnings;
- CCMA commissioners should not, without compelling reasons, second guess employers who have decided to dismiss employees.
The meaning of this finding is not that CCMA arbitrators are prohibited from overturning dismissals. Rather, the decision discourages commissioners from overturning dismissals without strong reasons.
While employers are hailing this decision as a victory they should not interpret it to mean that they can now impose the dismissal sanction as they please. There still has to be a sound reason to justify the dismissal decision as well as a proper disciplinary procedure. This must include a solid rationale as to why the mitigating circumstances failed to prevent dismissal.
To book for our 17 September webinar on WINNING AT THE CCMA IN THE COVID ENVIRONMENT please contact Ronni at [email protected] or on 0845217492 or (011) 782-3066.
As a result of South Africa’s highly restrictive labour legislation employers threaten to close down their businesses. But it is not necessary for employers to take such drastic steps merely because the labour law interferes with their right to make business decisions. This is because every employer has the ability and opportunity to acquire the expertise necessary to implement business decisions without transgressing the law and still maintain a viable business.
Employers too often make the mistake of retrenching problem employees because they perceive the disciplinary process as being too drawn out and complicated. However, they are not allowed to use retrenchment to get rid of ‘deadwood’, trouble makers, poor performers or other undesirables. Retrenchment only becomes a possible option if the job is truly redundant.
Employers are not required negotiate retrenchments but only to consult with the trade union or other employee representatives (if these exist) or with the employees themselves. The difference between consultation and negotiation is most important:
Negotiation means that the parties must reach agreement before any idea can becomes a decision or is implemented. This is not required in retrenchment law although the trade unions are pressing hard for this to be legislated.
On the other hand, the law of consultation provides that, as long as the employer can prove that it disclosed relevant information and tried thoroughly and in good faith to reach consensus, it does not have to actually reach agreement with the employees/representatives.
The halls of the CCMA and Labour Court echo endlessly with the groans of many thousands of employers (and some ex-employers) who refused to believe the labour law requiring fair or agreed retrenchment criteria and who failed to acquire the knowledge and expertise necessary to reconcile business pressures with legal requirements.
Countless cases have been decided at the CCMA and Labour Court where employers have either had to reinstate retrenchees and/or have had to pay huge amounts in compensation. This is often a disaster for the employer because the biggest reason for retrenchments is financial weakness and these awards against employers can place an unbearable burden on the already strained finances of the employer.
A case in point is that of Toyota SA reported in the Business Report of 30 November 1999. Here, the employer was required to reinstate 280 employees and to pay them R15,2 million because Toyota had failed to disclose to the employees sufficient information necessary for effective consultation.
In Ntshanga vs South African Breweries Ltd (2003, 8 BLLR 789) Ntshanga, a commodity manager, was retrenched as part of a restructuring exercise. Prior to his retrenchment he had applied for a post in the new structure but was rejected. He therefore lodged a dispute of unfair retrenchment. The Court found that:
- The employer failed to offer the employee one of the available posts because it was dissatisfied with his work performance
- The retrenchment was therefore unfair and the employee was awarded compensation.
In SACCAWU and others v Woolworths (Pty) Ltd  4 BLLR 323 (CC) Woolworths decided to convert many of its full-time employees to flexi-time and retrenched those who refused the conversion. 44 employees took the matter to the Labour Court which ruled their dismissals unfair, and ordered Woolworths to reinstate them with retrospective effect. The Labour Appeal Court upheld the unfair dismissal finding but altered the remedy from reinstatement to compensation equal to 12 months’ remuneration.
The Constitutional Court noted that Woolworths had failed to consider a number of alternatives including SACCAWU’s proposal that the full-timers be converted to flexi-time and be paid lower salaries. It followed that the dismissals were unfair. The Court ordered that all 44 employees be reinstated to their positions as full-timers with effect from the date of the dismissals.
The courts will often tolerate the employer requiring operational flexibility but will not tolerate the employer getting rid of those who refuse unreasonable demands of the employer.
Proper strategic thinking and understanding of what are often complex legal principles would have prevented these costly awards! Managers therefore require advice and training on how to restructure businesses and how to deal effectively and legally with poor performers or other undesirable employees.
To book for our 17 September webinar on WINNING AT THE CCMA IN THE COVID ENVIRONMENT please contact Ronni at [email protected] or on 0845217492 or (011) 782-3066.
The Basic Conditions of Employment Act (BCEA) entitles most employees to certain minimum rights as regards their terms and conditions of employment. These rights include, amongst others the right to:
- be remunerated for work done
- be given vacation leave, sick leave, maternity leave and family responsibility leave
- be paid for overtime worked
- lunch breaks
- weekly and daily rest periods
- night work allowances
- public holidays
- salary advices and written terms and conditions of employment.
The BCEA also entitles employees to discuss their terms and conditions of employment with each other. Therefore, disciplining employees for revealing their salaries to each other would be contrary to the law.
The Department of Labour (DOL) is required (with the help of the courts) to enforce this legislation unless the employee in question does not fall under the BCEA’s protection because, for example, he/she earns above R12478 per month or is a senior manager.
The DOL employs Inspectors who are required to investigate complaints against the employer and also to carry out routine inspections of the employer’s labour law compliance. Such inspections may be carried out without advance notice and without a warrant (unless the inspection is at a private place of residence. Where the inspector finds that the employer is guilty of, for example, paying employees for overtime worked, the inspector may request an official Undertaking from the employer to rectify this infraction by a deadline date.
Should the employer fail to make and/or to carry out such Undertaking the inspector may issue a Compliance Order. Should this order not be complied with the DOL may ask the Labour Court to make the order an order of court. Defaulting employers can then be jailed and/or fined for contempt of court.
An employer who has been issued with a compliance order is entitled to lodge an objection with the Director General of Labour (DG). Should the DG uphold the objection the employer is not obliged to comply with the Compliance Order. However, the DG may confirm the order which then obliges the employer to comply. The employer may delay compliance and lodge an appeal against the order at the Labour Court.
The DOL is also entitled to prosecute the employer in criminal court if the employer, for example, employs a child below the age of 15 or if the employer undermines, hinders or obstructs the work of a labour inspector.
Where the employee does not fall under the protection of the BCEA (e.g. due to his/her position or salary level), he/she may be able to refer any dispute relating to his/her employment contract directly to the Labour Court. The Court has, in fact, indicated its willingness to adjudicate matters referred to it by employees even when the employees have not specifically sued for breach of contract as long as the dispute relates to the employees’ basic employment conditions.
In the case of Minny & another vs Smart Plan CC (2010, 4 BLLR 439) the employees fell outside the protection of the BCEA because they were too senior. They were therefore unable to refer a dispute to the DOL and instead went straight to the Labour Court claiming that the employer had breached the provisions of the BCEA by failing to pay their leave pay. The Court overlooked the fact that the employees had failed to word their claim as a suit for breach of contract. The Court chose to assume that the applicants had intended to lodge such a claim and therefore agreed to hear the case. This shows that employers should beware of believing that they can have matters thrown out due to technicalities.
Employers should also beware that, should the employee properly refer a dispute of unfair dismissal to the CCMA under section 191 of the Labour Relations Act (LRA), he/she may add with that dispute, a dispute relating to any payment due to the employee in terms of the BCEA; and the arbitrator may make an award in that regard. In the case of Douglas & others vs Gauteng MEC for Health (2008, 5 BLLR 401) the Court pointed out that section 74 of the BCEA would entitle it to consider a claim for unpaid salaries if such claim were made together with an unfair dismissal claim lodged under section 191 of the LRA.
Due to the comprehensive protections afforded to employees employers should not do anything that could be construed as interfering with employee rights until they have received proper labour law advice
To attend our 23 July 2010 seminar in Johannesburg on WALKING THE LABOUR LAW TIGHTROPE please contact Ronni at [email protected] or on 0845217492 or (011) 782-3066.
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
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
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]
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
In our experience the reasons that motivate employers to suspend employees
To remove the employee from the workplace as a means of preventing
him/her from causing further harm by repeating the alleged misconduct or
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
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
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
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