Awards and penalties at the CCMA – what can go wrong…
Awards and penalties
The Labour Relations Act (LRA) gives the Commission for Conciliation, Mediation and Arbitration (CCMA) the power to take action against employers who commit an unfair labour practice or dismiss an employee unfairly. Once the applicant has referred a dispute to the CCMA, it will be set down for conciliation and a commissioner will be appointed to adjudicate the dispute. If conciliation fails, the matter will be set down for arbitration. Once the arbitration hearing has been concluded, the commissioner will issue awards within 14 days.
Awards and penalties that an employer can face may include the following:
The employer must take the employee back with retrospective effect to the date of dismissal. In such circumstances, the employer would have to give the employee back pay from the date of dismissal up until the reinstatement award was made.
The employer is required to take the employee back with effect from the date of the award. In some cases, it may be an earlier date.
The CCMA can award up to 12 months’ compensation to a successful employee. One month’s compensation will be equal to that specific employee’s monthly remuneration. If the compensation amount awarded to the employee has not been paid on or before the prescribed date, the employee can exercise his/her right to enforce the award. This means that the employee will proceed to certify the award in terms of section 143 of the LRA and it may be enforced as if it were an order of the Labour Court in respect of which a writ has been issued. The employee can now instruct a sheriff to attach the moveable goods of the employer.
What can go wrong, ending with awards and penalties?
What does the commissioner consider when calculating compensation?
- What is just and equitable in the circumstances.
- Was the dismissal substantively fair.
- Was the dismissal procedurally fair.
- What are the merits of each case together with its own unique circumstances, the relationship of the parties and their attitude after the dismissal.
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