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 but the award required the employer to pay tens of thousands of rand to an ex-employee.
It can also occur that an employer loses a case because the presiding commissioner was incompetent. 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 of 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.
- The vast difference in interpretation of the LRA by arbitrators and judges adds to the confusion amongst employers.
- 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 will not 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.
Becoming properly equipped to go to CCMA is best achieved via strategy including the following steps:
- 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.