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: ivan@labourlawadvice.co.za. Go to: www.labourlawadvice.co.za
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:
- The dispute resolution arms of bargaining councils (BC) in certain industries including, for example, the metal and engineering, motor, public service and chemical industries.
- The Commission for Conciliation, Mediation and Arbitration (CCMA) for those industries that do not have their own bargaining councils (e.g. retail, IT, security, financial services and others)
- The Labour Court
- The Labour Appeal Court.
The process is that:
- The aggrieved employee must start off by completing a dispute referral form and lodge it with the relevant BC or with the CCMA.
- A conciliation meeting is set up where a mediator is appointed to attempt to facilitate an out-of-court settlement.
- If this is successful the employer and employee sign a contract setting out the terms of their settlement agreement and the matter is then closed.
- If conciliation fails to resolve the dispute the employee may refer it to the next level which, depending on the nature of the dispute, will either be an arbitration tribunal (similar to a junior court) or to the Labour Court (the more senior dispute resolution forum). The matter will go to the Labour Court instead of to arbitration if the dispute relates to matters such as multiple retrenchment, strike dismissals or automatically unfair dismissals. The arbitration or Labour Court hearing would normally take place at a later date.
- Alternatively, the CCMA may set the matter down as a con/arb. In such a case, unless one of the parties objects, the arbitration would take place immediately that conciliation fails.
- At arbitration or Labour Court the arbitrator or judge hears evidence from the employer and employee and decides whether the dismissal or other act was fair or not.
- Once an arbitrator has communicated his/her decision to the parties either of them may, if dissatisfied, apply for a review at the Labour Court. For example, should either party have evidence that the arbitrator accepted a bribe, was biased, ignored relevant evidence, refused to listen to relevant evidence, assisted the other party unduly or otherwise acted wrongly, it may apply to the Labour Court to set aside the arbitrator’s decision.
- Any decision of the Labour Court may be referred to the Labour Appeal Court and could be referred even higher to the Supreme Court of Appeal and to the Constitutional Court as occurred in the case of Sidumo vs Rustenburg Platinum Mines Ltd.
When a dismissal dispute is referred to arbitration or Labour Court the employee only has to prove that he/she was, in fact, dismissed. Then the employer has to prove that the dismissal was both procedurally and substantively fair. And the employer normally has to provide such proof before hearing the employee’s evidence as to why he/she has alleged that the dismissal was unfair.
This means that the employer is assumed guilty of unfair dismissal until it proves itself innocent; but also has to present its case first. Thus the employer is in a seriously disadvantaged position.
At conciliation the employee may be represented only by himself/herself or by a union official. The employer may represent itself or be represented by an official of an employer’s organisation.
At arbitration lawyers may be allowed if:
- The dispute is not a matter of misconduct or incapacity OR
- The arbitrator allows lawyers due to the legal complexity of the matter or to ‘uneven playing fields’.
Employers are therefore advised to join registered employers organisations in order to avoid the uncertainty of being allowed representation.