WORKPLACE DISPUTES AND PROCEDURES – WHAT TO DO?
In the midst of a pandemic and looming recession not only individuals, but also employers are resorting to cost cutting measures in their businesses. The biggest cost to any business is normally its human resources thus nationally South Africa has seen a massive increase in retrenchments, unemployment and inevitably workplace disputes. The below article is aimed at giving the reader a practical understanding of the process of referring your dispute to the relevant bargaining council or the Commission for Conciliation Mediation and Arbitration (the CCMA).
What happens if there are claims of unfair dismissals or unfair labour practice at my workplace?
The easiest and most -effective way, if all internal measures have been exhausted, is to refer the matter to the relevant bargaining council or the CCMA. Most people have a general knowledge of the CCMA. Here it must be noted that multiple bargaining councils do exist for specialised fields or industries, especially for entities linked to the state and it is important to determine which bargaining council is appropriate for your dispute.
Dangers faced in referring disputes to a Council for resolution.
It’s very important that a proactive approach is followed when dealing with alternative dispute resolution proceedings. Neither party should wait upon the Commissioner to decide whether the referral bears any weight and failure to submit information to the Commissioner could have a negative outcome, as he can only base his / her findings on facts in front of him / her. If for instance an employer refuses or fails to be a party to the proceedings and does not attend the relevant dates, the commissioner may make a default judgment enforceable by the labour court in favour of the employee.
Who can and cannot refer the dispute?
It is obvious that either an employee or employer can refer a matter to the relevant Council, but the referring party may also be assisted in this regard by a legal representative (lawyer/attorney or advocate), an employee representative, Union or fellow employee. Here it is important to note that legal representatives in many cases do not automatically qualify to represent a party to the proceeding and must in many cases formally apply to the relevant council at least 14 days prior to the commencement of the proceedings, although recent judgments with regards to CCMA referrals have made this rule debatable and has allowed the presiding officer more discretion to allow legal representatives or not. Here it is also interesting to note that union representatives and fellow employees may without formal application, represent parties to the dispute.
How long do I have to refer?
It is of utmost importance that the relevant bargaining Council be referred to immediately in the case of unfair dismissals since the Act only allows for a 30-day period from the date on which the dispute arose to registering a case. In unfair labour practise matters a 90 day period is provided for and with discrimination matters a six month period.
How do I approach the relevant Council to refer my case?
In the case of the CCMA, you have to go to your local CCMA office where the relevant referral document “LRA form 7.11” should be completed. This document is also readily available at any office of the department of labour. The relevant referral documents are also available in electronic form on the CCMA website. Once the form has been completed and submitted, a copy must also be delivered to the opposing party in the dispute. Acceptable methods of delivery being fax, registered post, courier, or personal delivery (with proof of such, i.e., a fax transmission slip, postal receipt, courier receipt or signature of the opposing party, being important to keep – proof of delivery via e-mail shall also be acceptable).
In the writer’s personal experience, it is very important to complete the referral document properly and accurately as this can become a further point of dispute in the proceedings. If any of the parties are at all reluctant or uncertain it would be best to approach a labour expert or experienced person to assist.
What happens at the CCMA?
The CCMA will contact all parties for a conciliation date if it feels that a Conciliation / Arbitration process is appropriate. A Conciliation is aimed at informally settling the matter without having to follow the more rigid process of Arbitration. If Conciliation fails, the presiding officer (called the commissioner) will issue a certificate to this regard. Upon the certificate being issued the matter must then be referred for Arbitration via an “LRA form 7.13” that must be actioned within 3 months of the certificate being issued.
Arbitration in short is a form of alternative dispute resolution where parties and witnesses are subjected to cross-examination and a binding decision or rather a reward, if deemed appropriate, is made by the presiding officer (called the arbitrator). Should this said reward not be complied with, it can be enforced by an order of the court via the labour court.
The above-mentioned process can become a timeous, emotionally draining, and stressful process and the writer would advise a prospective referring party to rather employ the services of a professional in the field of labour law to facilitate the process.
Article by Patrick Vosloo (Associate)