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SMEs and the CCMA – How to navigate the process effectively

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M4Attorneys > Legal Advice  > SMEs and the CCMA – How to navigate the process effectively

SMEs and the CCMA – How to navigate the process effectively

“On average, the effect of labour disputes on small businesses is immense and very often crippling,” says Allon Raiz.

He says the cost to the economy and the businesses is threefold, “The extreme result is that a large number of small businesses have no choice but to shut down.”

The second consequence, Raiz says, is that the legal costs of CCMA disputes are a mammoth waste of a small business’ resources and thirdly some SMEs, out of fear, possibly from bad experiences in the past, no longer employ.

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What is the CCMA?

According to The Department of Labour, the Commission for Conciliation, Mediation and Arbitration (CCMA) is an independent, juristic body that helps to resolve disputes and offers advice and training on labour relations.

The CCMA is mandated to:

  • Try to resolve disputes through conciliation or arbitration
  • Help in forming workplace forums
  • Publish information on its activities and guidelines for dispute resolutions
  • Advise on getting legal advice
  • Determine dispute resolution fees, if applicable
  • Make rules to regulate its own procedures, processes, documentation, calculate costs and then publish these rules in the Government Gazette

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What should employers expect during the CCMA process?

Mongie says where an employee refers a dispute to the CCMA, the CCMA will firstly inform both parties as to the date, time and venue of the first hearing. This hearing is known as conciliation and is a process where a CCMA commissioner assists the parties in trying to find a solution or a settlement of their dispute.

Mongie says only the parties, trade union or employers’ organisation representatives (if a party to the dispute is a member) and the CCMA commissioner are allowed at conciliation. Legal representation is not allowed.

“If the dispute cannot be resolved at conciliation, the commissioner will issue a certificate of outcome to that effect,” Mongie says and further explains that the referring party may then refer the matter to arbitration within 90 days from the date on which the certificate of outcome was issued.

At an arbitration hearing, Mongie says that a commissioner will give both parties an opportunity to fully state their cases after which the commissioner will then make a decision on the issue in dispute.

“The decision, called the arbitration award, is legally binding on both parties, says Mongie, “Unlike conciliation, the parties are allowed to present evidence in arbitration.”

The employer in an arbitration hearing may appear in person or be represented by, a director or an employee, Mongie says adding that the employer may also be represented by a legal practitioner.

“Legal representation at arbitration hearings is however not an automatic right where the dispute relates to the fairness of a dismissal and the employee has alleged that the reason for the dismissal relates to the employee’s conduct or capacity,” Mongie says.

“In this regard, legal representation may be permitted if the commissioner and all the other parties consent, or if the commissioner concludes that it is unreasonable to expect a party to deal with the dispute without legal representation (usually matters of a complex nature),” he says.

The employer and the employee will each be given an opportunity to present their evidence to the commissioner as follows:

  • The employer will have an opportunity to address questions to his/her witnesses in examination in chief;
  • The employee  will then be given an opportunity to cross-examine the employer’s witness;
  • The employer, when the cross-examination has concluded, will be given a chance to re-examine his/her own witness. This means that the employer can only deal with issues and questions raised in cross-examination and not raise new issues. The purpose is to repair any damage done during cross-examination.
  • This entire process is repeated in respect of each witness. When the first party has concluded all its evidence, the other party will lead its witnesses. The same procedure discussed above will apply.
  • When the evidence is concluded, each party will then have the right to give a closing statement to briefly summarise the evidence presented and to the arbitrator.
  • It should be noted that whilst the matter is of a legal nature, CCMA proceedings are far less formalistic than court proceedings and the aim is focused at determining the real issue at hand and the applicable resolution.

The essential checklists that employers need to cover to ensure they will be successful during a CCMA dispute.

Mongie says, “At the outset, the employer and/or his/her representatives must be well versed with the case and fully understand the matter and all facts relevant to it. The assistance of a legal practitioner may be necessary to assist in this regard.”

Conciliation
  • The employer must have a range of settlement options before conciliation.

The employer should be open to having the matter resolved and settled at conciliation, if the circumstances warrant it, Mongie says.

Arbitration
  • Prepare all documentation.

In preparation for the arbitration, Mongie says the employer should gather and put together a full bundle of documents properly numbered which would then reflect all the evidence which is going to be discussed and proved.

“It is for this reason that maintaining documentary record for all matters pertaining to employment matters should be kept,” he says.

  • The employer must gather a full list of witnesses beforehand.

“These witnesses must be selected based on the evidence the employer wishes to lead,” Mongie says and emphasises that it is essential that all the witnesses are thoroughly prepared prior to arbitration.

  • The employer should also make a list of possible cross-examination questions that could be addressed to the employee and the employee’s witnesses.

“Preparation in all senses is absolutely critical for success,” Mongie advises.

What you can do if the CCMA rules against you as the employer

“If the employer is not satisfied with the arbitration award, he/she may apply for a review to the Labour Court on the basis of an alleged defect with a commissioner’s rulings or awards,” says Mongie.

He adds that once the ruling has been made, the employer should weigh up whether or not it has merits in reviewing it, saying it may be useful for the employer to get professional legal assistance in this regard.

Mongie says that in terms of section 145(1) the LRA, the employer would have to apply to the Labour Court to set aside the award within six weeks of the award being served.

Mongie says, “The final ground for review pertains to the situation where a party to the dispute has improperly obtained the award.”

He adds that it is important to note that the review is not an appeal, and therefore it is not related to the merits of the actual matter but whether the Commissioner has conducted himself in an unreasonable manner in making the findings.

“Having considered the merits of whether a matter may be reviewed, the employer should then make a decision whether to abide by the award or to proceed with taking the matter on review (taking the possible costs, both monetary and in terms of time and human resources, into account),” he says.

 

Source: http://www.smesouthafrica.co.za/

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