The CCMA was established as an independent, apolitical dispute resolution body in terms of the Labour Relations Act (LRA), Act 66 of 1995. It is aimed at promoting fair practices and resolving labour disputes within the working environment.
An employee can refer a dispute to the CCMA on account of dismissal, wages and working conditions, unfair labour practises, workplace changes and discrimination. Most cases referred to the CCMA pertain to unfair dismissal. In general arbitration awards in favour of the employees. This is due to incorrect procedures on the employer’s behalf.
Be proactive with these top tips and ensure that the consequences of a CCMA case do not mean the end of your business:
Clear rules and guidelines
Have clear rules and guidelines in the workplace and ensure that every employee is aware of these rules. Employers must have an up to date disciplinary code. The disciplinary code must list offences with the appropriate sanctions to use when rules are not followed.
Apply progressive discipline according to the seriousness of the offence and keep detailed record thereof.
Remember the CCMA mainly looks at two elements when an employee refers a dispute:
Substantive fairness refers to a valid and fair reason for the sanction imposed. The employer must be able to prove the following on a balance of probability:
- Was there a rule in the workplace?
- Was the rule reasonable?
- Was the employee aware of the rule?
- Did the employee break the rule?
- Did the employer apply progressive discipline (consultation and warnings, according to the offence)?
- Did the employer apply discipline consistently?
- Did the misconduct justify the sanction applied?
Procedural fairness refers to the required legal procedure before imposing a sanction. An employer cannot dismiss an employee under any circumstances, even with valid reason, without holding a disciplinary hearing. This ensures that a fair procedure is followed. The employer must be able to prove the following:
- A disciplinary hearing was held.
- The employee was notified in writing at least 48 hours (excluding weekends and public holidays) prior to the hearing to prepare for the hearing.
- All documentation (notice to attend the hearing and a procedural application form) contained all the necessary information required by legislation.
- The chairman was informed and unbiased.
- The accused employee was given every chance to prepare for and defend his/her case.
- Aggravating and mitigating circumstances were taken into account.
- The outcome of the dismissal was based on the facts presented during the hearing.
- The sanction was appropriate to the offence.
- The hearing and outcome was recorded in writing by the chairperson.
- The employee received the outcome in writing.
Labour risk is a huge business risk. Labour risk must be managed proactively to ensure the sustainability and profitability of your business. Not following the correct procedures can lead to dire consequences with huge financial impact.
Contact the LWO of assistance with these challenges.
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LWO Regsadviseur - LWO Legal Advisor
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