people are happy when they have a successful mediation

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

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

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.

 

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.
Will and Testament Documents on a Table

Many people don’t want to think about drafting their Last Will and Testament.

None of us want to think about becoming ill or aged.  The reality is that anyone at any age must have a Will.  As the saying goes “it’s always better to be safe than sorry”.

When having a Will drafted by an Attorney, the individual must understand what the document contains, as well as the consequences in terms thereof.

This article will therefore discuss the answers to the most frequently asked questions that we, as attorneys, receive and the importance of such questions.

What is a Will?

A Will is a document which will direct the management of your assets and liabilities upon your death.

When Should I Think About Drafting a Will?

You should always have a Will and it should be updated on any changes in your life, e.g. getting married, having a child, buying or selling a property etc.

What Happens if I Don’t Have a Will?

If someone dies without a Will it means that their assets will devolve unto their next of kin and other family members via the intestate stipulations in the Administration of Deceased Estates Act.

This process is usually more time consuming as it will take longer to administer the Estate. It can also place a disadvantage on certain people who may not inherit from the estate as you might have wanted or intended them to.

What Makes a Will Legally Valid?

A Will MUST be in writing and dated and signed by the person whose Will it is (the “testator/testatrix”).

It must be witnessed.

A Will may, in certain circumstances, be “signed” by way of thumb print and/or seal if one is physically unable to sign, but the legal provisions in respect thereof are very strict.

Contact our offices for direction if you wish to discuss the drafting of your Last Will and Testament.

When Can a Will be Challenged?

A Will can be challenged for many reasons e.g.

If there is a question as to whether the person had drafted their Will under duress;

Where it is questionable whether such person was competent or unable to comprehend what the contents were when drafting the Will;

Where such person did not meet the proper requirements to make such Will legal and valid according to the law.

Where are Wills Kept?

As attorneys, we draft the Will on behalf of and to the satisfaction of the client.  The client then signs the Will and the document is witnessed.  The document is then placed into Securities, where it is protected against theft, fire etc.

What is a Testamentary Trust?

A Testamentary Trust is a trust created within a Will whereby another person is nominated to inherit a property in the future.

Most people hold money or assets in trust for their children to access when they reach the age of 25 years old, as they will be more competent to utilize it at that age.

What is a Living Will?

A Living Will is a separate document which is usually attached to a Will.  This document states that in the event of someone being hospitalized and medical intervention will not save the person’s life, then the hospital is to cease any procedures which will only prolong the person’s life and/or suffering. This usually occurs when a person is terminally ill or permanently in an unconscious state.

How Many Executors and/or Trustees Should I Have?

By law there should be at least one executor and if there is a Testamentary Trust created, there should be at least two trustees. Usually executors and trustees are the same people.

What Happens to My Minor Children When I Die?

Both parents are natural guardians of children, so whether you are married to your child’s other parent or not is irrespective. If one parent dies, the child/children will be in the care of the other parent. However it is important that if both parents die for example simultaneously, that another person, such as a family member, or friend, is nominated to care for the child/children.

In conclusion, this article clarifies the most important aspects to a Will as questioned by clients. One of the most important things that we like to instill to our clients is that you should create a Will as soon as possible, as it is not dependent on age. One must be competent and of sober mind when creating their Will and most importantly the client MUST understand their Will when signing it so as to avoid future complications.

For more questions or to create a will with us please don’t hesitate to contact SCHWENN INC today at 031 563 1874 or email us on Charmaine@schwenninc.co.za. We look forward to helping you safeguard your legacy!

 

Person Pocketing a Single Bitcoin

Bitcoin is a new virtual currency that was created in 2009.  Transactions are made with no middle men – meaning, no banks! Much of the hype is about getting rich by trading it.

Some people just buy bitcoins as an investment, hoping that they’ll go up in value.

Bitcoins are essentially a digital payment network stored in a “digital wallet,” which exists either in the cloud or on a user’s computer. The wallet is a kind of virtual bank account that allows users to send or receive bitcoins, pay for goods or save their money.

Bitcoins are protected by powerful cryptography, a secure way to store your wealth but it ultimately creates the risk that when you die, your heirs will not have access thereto.

A “private key” allows the owner access to the digital wallet’s contents.   Unless your heirs have your private key, they will be unable to gain access thereto when you die.

How To Ensure Your Bitcoins Are Transferred to your Heirs

To ensure that your Bitcoins can be transferred to your heirs upon your death, it is advisable to entrust a copy of your private key with your financial advisor or attorney who can ensure that your heirs receive it.

Although the Bitcoins do not form part of the physical assets of your Estate, it would be advisable to bequeath your Bitcoins in your Last Will and Testament and to identify the person who has a copy of your private key.

This will ensure that there is no uncertainty whom you wanted to gain access to your wallet after your death.

We at Schwenn Incorporated Attorneys and Conveyancers have an Estates Department that would be willing to discuss this issue with you.  Give us a call to set up a meeting to draw up your Last Will and Testament and to discuss your Bitcoin portfolio in the process.