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.
With the chaos that the Covid-19 lockdown can cause, it would be no surprise if the employer does not receive the notice of set down. If this occurs the employer might receive the unpleasant surprise of a default judgment made by the arbitrator in the absence of the employer.
It can also occur that an employer loses a case because the presiding commissioner was incompetent. Fortunately, most CCMA commissioners are competent. 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 off second best at the CCMA. Why do employers, so many 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 CCMA Rule 30 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 won’t 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 and this is best achieved via strategy which includes the following steps:
- As soon as you have acted against an employee’s interests in any way, assign someone to check whether a case has been opened at the CCMA or bargaining council.
- 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.
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