After an employee refers a dispute to the CCMA, the Employer should immediately take steps to prepare for the Conciliation. These steps should include the following:
It is advisable to immediately notify the CCMA of your intention to object, should you decide to object to the conciliation/arbitration (con/arb)
1. According to the rules, the CCMA should notify you on at least 14 days notice of its intention to follow the con/arb process.
2. If you decide to object to the con/arb process, you have to do it 7 days before the date of conciliation. A failure to do this will normally cause for the arbitration to proceed directly after the conciliation.
3. An objection can take the form of a standard legal notice or it can be done by way of a letter. The letter should be addressed to the CCMA Commissioner named in the notice of the Hearing.
Keep evidence that you faxed the letter to the CCMA. It is also good to fax a copy of the letter to the employee. An example of a company letterhead:
Re: Matter description and the case number
With regards to the above, we hereby formally object to the con/arb process.
Human Resources Manager
4. The next thing that the company should do is to call for a meeting of everyone involved in the disciplinary Hearing, i.e. the Chairperson, complainant and the Investigators.
5. During this meeting the case should be evaluated and a proper risk assessment should be done. Do not be scared to do the work if conciliation fails you need to be prepared for the arbitration in any event.
6. Very often, where a company gets taken to task in the CCMA, the Human Resource Manager or Chairperson may be held accountable if the employee wins the case against the company in the CCMA.
7. The team should then work through everything that was done during the Hearing, evaluate the charge sheet, minutes of the Hearing, the Chairpersons finding, evidence etcetera.
8. The team should not be shy - try and find fault with the procedure followed and with the outcome of the disciplinary Hearing. Never compromise with the preparation:
Were the charges against the employee justified and were procedures followed fair and without prejudice?
Did the Chairperson come to a reasonable verdict and was the Chairperson fair during the Hearing? Was all evidence direct evidence or was it based on hearsay evidence? Were all the factors taken into account in mitigation of sentence, such as the personal circumstances of the employee and their previous disciplinary track record?
In practice we often find that the Chairperson was never really in charge of the Hearing, but that a senior company employee made the crucial decisions about the Hearing especially in cases where the independent Chairperson gets paid on a regular basis by the company to chair Hearings
This could be a very dangerous practise for the employer to engage in.
Consider the risks if conciliation fails, how much is the company at risk for? Will it be cheaper for the company to settle the case consider the variables such as the time to prepare for arbitration, the amount of witnesses that will not be at work and the lost productivity of the said witnesses?
By: Martin Vermaak, Attorney