By Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or via e-mail address: ivan@labourlawadvice.co.za. Website: www.labourlawadvice.co.za.
Conciliation is a process used by the CCMA and bargaining councils to enable the disputing parties to settle the matter amicably without having to go to arbitration or to court. A commissioner is assigned to mediate the dispute with the parties by helping them to reach a peaceful agreement. Where conciliation succeeds in achieving such amicable resolution the parties sign an official agreement on the letterhead of the CCMA or bargaining council.
A breach by either party of this agreement constitutes a contractual violation. Where, for example, the employer has agreed, via an official settlement agreement, to reinstate the employee and then fails to do so, the employee is entitled to ask the CCMA or bargaining council to convert the agreement into an award. If the employer disobeys that award, it could be found to be in contempt of court.
In the case of Bernardus Coetzer vs Thabakholo Environmental Solutions & Another (Case number JR1599/23 – 4 June 2024) the parties had signed a CCMA settlement agreement to the effect that the employer would reinstate the employee. However, the employer failed to do so and also disobeyed the resulting CCMA award that reinforced the settlement agreement.
The Labour Court found that the employer was in contempt of court for disobeying the award. The Court therefore ordered the employer to reinstate the employee, to pay his legal costs and to pay a R100 000.00 fine.
Due to the fact that the conciliation process is normally peaceful, informal and amicable employers can deceive themselves into believing that conciliation agreements have no weight and can be flouted.
The very costly outcome of the Thabakholo case reveals the fallaciousness of this belief. It shows that employers need to gain a better understanding of the purpose of CCMA conciliation and the binding nature of settlement agreements. This understanding is essential to avoid the heavy costs of breaching such settlement agreements. In addition, employers need to gain a clear understanding of the way in which labour law protects employees and places very heavy obligations on employers.
The innovative video series WALKING THE LABOUR LAW TIGHTROPE assists employers to provide their managers with very inexpensive training that allows the managers to achieve the necessary know-how at times suitable for their very busy schedules. Its 48 chapters, averaging 10 minutes in length each, can easily be watched at junctures when the manager has time. This greatly informative yet very engaging and practical video series provides crucial and user-friendly learning through the use of a stimulating, animated case study that runs throughout the 48-chapter series. Each chapter contains clear and important advice needed by workplace management on the basics of labour law over a very wide range of topics.
A further advantage is that the manager can, for a full year, easily go back to any of the 48 videos for purposes of refresher training or in order to access information on how to deal with a current workplace issue. This solves the problem of managers forgetting what they have learned.
This video series helps management to walk the shaky labour law tightrope and to run the workplace productively without falling into the labour law abyss.
To access our groundbreaking video series: WALKING THE NEW LABOUR LAW TIGHTROPE please go to www.labourlawvideos.co.za or contact Ivan on ivan@labourlawadvice.co.za
