RESOLVING A LABOUR DISPUTE THROUGH CONCILIATION & ARBITRATION
Many employers find themselves being served with notices to appear before the CCMA and wonder how it happened. This can either be because an employee of that company feels that he has been treated unfairly or that he was dismissed in a manner that is unfair. The big question then becomes: what does the CCMA do for parties involved in a labour dispute and whose side is it on?
The Labour Relations Act provides for first instance mechanisms which can be used to resolve labour disputes between employers and employees. Disputes that involve unfair labour practices and unfair dismissals are then considered through the statutory dispute resolutions (conciliation) before they can be transferred to arbitration or the Labour Court.
The CCMA is a dispute resolution body established in terms of the Labour Relations Act (LRA). It is an independent body and does not belong to and is not controlled by any government entity, trade union or business. Any party can approach the CCMA to resolve a labour dispute; however you find that in most instances it is usually employees that refer matters to the CCMA. In the case of an unfair dismissal, an employee will have 30 days from when the dismissal took place to refer the matter to the CCMA for a resolution. In the event that an employee is subjected to an unfair labour practice, he must approach the CCMA within 90 days of such unfair conduct. The CCMA can however condone a late referral if the party referring the matter can provide good reasons for the late referral.
When approaching the CCMA, an employee would need to allege either an unfair dismissal or an unfair labour practice.
An employer is permitted to dismiss an employee for misconduct, incapacity and for operational requirements. Misconduct relates to the breaking or non-adherence to the rules and policies of the workplace. Incapacity is in respect of an employee which cannot perform his functions properly or to the standards set out. A dismissal due to operational requirements is when an employee is dismissed not because of fault on his part but because the company has no choice but to after considering its needs (retrenchment).
Although an employer would be allowed to dismiss an employee based on the reasons set out above, he would need to adopt the principles of substantive and procedural fairness as contained in the LRA when doing so. In terms of substantive fairness, an employer would need to have valid reasons for dismissing the employee. That is to say that the employee has broken the rules repeatedly or that he has failed or has not been able to improve his performance.
With regards to procedural fairness, an employer is required to follow the right and appropriate procedure when dismissing the employee. This is often how a lot of companies find themselves in trouble because they did not follow the right procedure. The procedure would obviously depend on the reason and type of dismissal, however, standard rules say that an employer would need to inform the employee of the allegations against him and the employee must be given sufficient time to prepare a response to the allegations put against him.
REFERRING A DISPUTE FOR CONCILIATION
In order to refer a dispute to the CCMA, an LRA7.11 form needs to be completed and submitted to the CCMA. This is the CCMA’s case referral form. This form will contain all your personal details as well as details about the dispute. A copy needs to be served on the other party so that they are fully aware of the process. Upon receiving your case, the CCMA will appoint a commissioner who will inform both parties of the referral, as well as when the first hearing will take place.
The purpose of this is to try and resolve the dispute first hand, thus avoiding the lengthy processes of arbitration from the CCMA or the Labour Court. Conciliation also gives parties a platform to consider and lay out their issues which can sometimes result in a settlement being reached. If the dispute is not resolved or 30 days have passed since the date of the referral and no conciliation was done, the commissioner will issue a certificate of outcome. Depending on the nature of the dispute, the case may be referred to the arbitration or the Labour Court.
Arbitration is a more formal process which includes the leading of evidence and the calling of witnesses. The party alleging the dispute to be the fault of the other bears the onus to prove his case. A dispute must be referred to arbitration within 3 months from the date on which the commissioner issued the conciliation certificate and is applied for by completing a request for arbitration form (LRA Form 7.13). An arbitration award is then issued stating reasons for the commissioner’s decision within 14 days of the conclusion of the arbitration.
Only certain disputes can be referred to arbitration and these include dismissals for conduct or performance, ‘constructive dismissal’ based on intolerable working conditions, harassment and unfair labour practices, etc. A party in a labour dispute is entitled to have legal representation at arbitration. An arbitrator must conduct himself in a fair and impartial manner as a neutral third party that is mediating. The arbitrator’s decision or ruling is binding on the parties and cannot be appealed but can be subject to a review.
Section 145 of the LRA provides that a party may apply to the Labour Court on the basis of an alleged defect with the commissioner’s ruling. The party alleging the misconduct or defect will have to make an application to the Labour Court to set the ruling aside. The award will be found to be defective if the arbitrator committed a gross irregularity in conducting the arbitration proceedings or went beyond his mandate/duties or facilitated an improper acquisition of an award in favour of one of the parties. Examples of these include, but not limited to, bias, aggression towards witnesses, rejecting evidence and failing to apply his mind in coming to a decision.
If a dismissed employee is successful in any of the above processes, he will be entitled to reinstatement. If he does not wish to go back to work, he will then be entitled to some compensation for the unfair dismissal. The award that was granted in arbitration will not be suspended during the review process. So if an employer was ordered to reinstate an employee, that award is enforceable from then on. So if an employer wishes to suspend the enforcement of the award pending the review, he would need to furnish security to the value of the award that was given.
Dealing with a whole of labour related disputes which can turn either way often gets parties to make decisions which they have not carefully considered. This can result in a huge waste of time and money and that is why it is best to try by all means to avoid going to the CCMA. The best thing you can do either as an employer or employee when involved in a labour dispute issue is to get legal advice on how to deal with the dispute. Even when the matter does end up in the CCMA, one should be prepared for the mediation and be open to settlement.
HOW WE CAN HELP
Schwenn Inc offers multi-disciplinary, innovative dispute resolution solutions that range from litigation to arbitration, conciliation, mediation and negotiation. We can help you with:
- Drafting your Company’s Code of Conduct: Outlining the Company’s expectations and guiding principles for good and ethical workplace behaviour.
- Advising on Disciplinary Procedures: This will ensure that in every labour dispute the company is involved in, the right procedures are followed in trying to resolve them, thus avoiding being taken to the CCMA or the Labour Court.
- Reviewing your Company’s Employment Contracts: To establish whether the Company is protected in the event of disputes with its employees and to ensure that the contracts are clear on the relationship between the Company and its employees.
- Chair Disciplinary Hearings: Schwenn Inc can facilitate a smooth, effective and rewarding mediation in the disciplinary procedures.
- Assist in Preparing for the CCMA: Our firm can instil confidence in your Company when it is called to appear before the CCMA or Arbitration by preparing you for the hearings and the procedures.