A while ago, I received a panic phone call from an employer who had
received an unfavourable arbitration award in respect of a CCMA case they never
knew existed. That is, the employer had never received a summons to appear at
the CCMA. The award required the employer to pay tens of thousands of rand to
an ex-employee. This can happen for a number of different reasons including:
·
The employer’s clerk received the summons via fax or post but did not
give it the relevant person at the employer.
·
The employee gave the CCMA the wrong address for the employer.
·
the possibility that the CCMA did not ensure that the notice of the
arbitration hearing reached the employer.
It can also occur that an employer loses a case because the presiding
commissioner was incompetent. Fortunately, not all CCMA commissioners are
incompetent. I have had the pleasure of presenting cases before some highly
competent arbitrators. However, there are too many case decisions made at the
CCMA that are overturned by the Labour Court.
Uncertainty as to whether or not you will have a competent
arbitrator is bad enough. However, if you also arrived at the CCMA without
labour law expertise you are doubly weak. That is, if the arbitrator is weak
and you are strong in labour law you may well be able to help the arbitrator
see that light. But if your own knowledge is also bad you are a sitting duck
for your opposition’s legal representative.
Due to the fact that ignorance of the law is no excuse employers who do
not know the law normally come of second best at the CCMA. Why do employers,
twelve years after the creation of the new Labour Relations Act (LRA), still
not know the law? There are many reasons:
·
The LRA has been badly written in parts and is therefore confusing to
employers. That is, many sections of the LRA are very general and broad leaving
too much room for interpretation or abuse.
·
CCMA rules dealing with how the parties must proceed with matters get
struck down by the courts as legally unacceptable. For example, in the case of
Premier Gauteng & another vs Ramabulana NO and others (CLL Vol.17 February
2008) the Labour Appeal Court struck down a previous CCMA Rule that allowed
commissioners to dismiss cases where employees fail to arrive for conciliation
meetings.
·
The vast difference in interpretation of the LRA by arbitrators and
judges adds to the confusion amongst employers. It frequently occurs that
findings by one arbitrator/judge is overturned by another and then overturned
again.
·
Even those laws that are reasonably clear and less subject to
interpretation are very complex and numerous. For example, it is clear and
unambiguous that an employer must give an employee a hearing before firing
him/her for misconduct. However, how that hearing must be conducted is complicated.
·
Employers are unwilling to spend the time and money necessary to train
their managers on how to discipline and otherwise treat their employees. It is
only when employers lose a case at the CCMA that they realise the value of
legal expertise.
For some time, parties will not know what level of expertise they will
find in the arbitrator who hears their case. The best a party can do, in view
of this uncertainty, is to ensure that they spare no expense in going properly
equipped to the CCMA. Becoming properly equipped to go to CCMA is best achieved
via strategy including the following steps:
·
Recognition by top management that labour law presents an extremely
dangerous minefield for the employer
·
Training of all managers, supervisors and HR/IR professionals in the
labour statutes and case law
·
Acquisition of the services of an expert in labour law implementation to
help deal with disciplinary, grievance, retrenchment, merger, CCMA, bargaining
council, trade union and other labour matters.
Properly equipped employers will be able to:
·
Distinguish between good and bad arbitrators
·
Tactfully point out to the arbitrator where he/she might be erring
·
Recognise which acts of the arbitrator, if any, need to be taken
on review.
·
Gain a firm grasp of the LRA and of the laws of evidence
·
Manage their employees productively and effectively while remaining
within the law.
To buy our E-book WALKING THE NEW LABOUR LAW TIGHTROPE please contact
Ivan via [email protected] or 011-8887944 or 0828522973.
BY Ivan Israelstam, Chief Executive of Labour Law Management
Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail
address: [email protected]. Go to: www.labourlawadvice.co.za
