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Thread: Endless Arbitration at the MEIBC - fantasy vs. reality

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    Endless Arbitration at the MEIBC - fantasy vs. reality

    A friend of mine , on the strong encouragement of a number of labour lawyers, resigned from her job and filed a constructive dismissal case against her former employee 15 months ago. The lawyer upon seeing the resistance the company was willing to put up bailed. A second lawyer confirmed that it was 'the best documented case of constructive dismissal they'd ever seen', and yet also bailed when my unemployed friend could not pay them a large retainer up front. The company she worked for had a strict policy of not even allowing union representatives onto their premises (+500 employees, no one 'allowed' to be a member of a union). So my friend has been left to battle it alone against the company lawyers at the MEIBC. Last fall, my friend presented her case in approximately 3 hours, since then there have been about 6 days of hearings spread over 10 months throughout all of which she has been under cross examination by the respondent lawyers (asking questions with little or no relevance to the evidence she presented). The respondent has failed to show up for hearings, failed to have witnesses ready to testify, claimed to never have received email after e-mail and generally delayed and obfuscated the proceedings at every turn. The commissioner has done nothing to stop this and after one hearing told my friend she is not to speak about her case to anyone even a lawyer during the 3 months between hearings while she is 'technically' still under cross examination (no, seriously she didn't mis-hear that). Finally at the last hearing a month ago, the commissioner decided to recuse herself at the respondent's request, and the procedure is to start anew if the MEIBC ever assigns a new commissioner and a new date which they have been hesitant to do.

    I have tried to raise issue with the procedure with higher-ups at the MEIBC and also at the CCMA just to get basic procedural answers but I get completely stonewalled at every turn. They are very interested to hear what I have to say and promise to investigate, and then shut down giving vague non-informative responses or even breaching confidentiality and sharing my questions with the respondent companies lawyers.

    I realize I am not giving specifics of the case here. I don't want to jeopardize the arbitration process, as the MEIBC seems to imply saying anything about would do. But I would really like to understand the labour landscape in SA. I'm an American, where capitalism rules and no one even dreams that they could take their employer to court and win. But in SA there at least seems to be the pretense that one could. There are strong unions and supposedly impartial bargaining councils for conciliation and arbitration. There are lawyers left and right ready to jump up and champion your case (as long as they get paid first). What I really need to know now 15 months into this process with my friend is what is the REALITY in South Africa.

    Is what I described above simply how the procedure goes? Can the bargaining council prolong an arbitration proceeding indefinitely simply to never have to make a ruling?

    Is the MEIBC known to be incompetent or in collusion with companies to bias proceedings in their favour? It's really hard to justify the pattern of behaviour of the MEIBC in any other way in this case.

    Can an individual expect justice if they don't have a union and can't afford legal representation? If so, how many years should it take? My friend has been an unemployed single mom since this procedure started, inelligible even for unemployment benefits until a ruling is made (because it was a constructive dismissal).

    At this point we really just want honest answers from ANYONE so we can call it quits knowing that we fought the good fight. If the answer is 'yes, there is corruption and incompetence at the bargaining council and constructive dismissal cases can take years just for a ruling' we will pack up the stacks of pages of evidence and call it a day.

    I all else fails and we resign this case,
    Is there a legal, ethical way to 'out' a company?
    This company is rife with labour violations, not just to my friend but throughout their operations, which my friend could present evidence of and testify to. Where do we go with this information to help current and future employees out, so they don't suffer the same fate as my friend?

    Okay that's probably enough questions for 10 posts, but if you've read this far, thank you, I appreciate you taking the time. Please respond with any insights or opinions you might have regarding any of the issues I raised. We are desperate at this point just to know from others what the labour law landscape actually looks like so that we can put what we are going through into perspective.

    Sincerely,
    S.

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    Site Caretaker Dave A's Avatar
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    I take it the employee is not represented by a union.

    Is the employer a party or non-party to the collective agreements of the bargaining council?

    I ask because the status of the MEIBC is... well, read for yourself here:
    A collective bargaining levy agreement was introduced into the metal and engineering industry during 2003. The agreement was enacted for five years, was renewed for a further five year period in 2008 and expired on 31 December 2012. A new collective bargaining levy agreement has been forwarded to the Department of Labour but at this stage the actual date of implementation is unknown and depends on the decision of the Minister of Labour.
    There may be a question as to whether the bargaining council has authority to arbitrate the case at the moment.

    And of course, if it starts going down the CCMA route, and the Minister now accepts and extends the collective agreement, what then?

    Up until recently one would assume the collective agreement would be approved as a matter of course, but recent news of challenges to collective agreements indicates this might not be as assured as in the past.

    Sorry - that probably raises more questions than gives answers. Perhaps the best way of describing the current situation is "there is a lot of uncertainty just at the moment".

    The one thought that did occur is win, lose or abandon, there is nothing preventing your friend from seeking employment in the interim.
    The trouble with opportunity is it normally comes dressed up as work.

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    the fog of bargaining councils

    Thanks for the response Dave,

    She is not a member of a union. No one who works for the company is. In fact when she worked their her superiors gave her specific instructions not to allow any union representatives onto the premises.

    I don't know how to determine 'party or non-party'. I know that my friend originally brought the case before the CCMA which had handled previous arbitrations with other employees of the company. After the CCMA fined the company R10000 for coming to a hearing unprepared, the company produced some document and argued that they were associated in some way with the MEIBC and that that's where the case should be arbitrated. But I don't know if that is legally the same thing as being 'party to a collective agreement'. They certainly don't tie pay scales or raises to anything guided by the MEIBC, but that might just be another violation. The CCMA reviewed the document and determined that the case was to be heard by the MEIBC. We have asked both the CCMA and MEIBC for clarity on this but haven't gotten any answers. I have a feeling that these bargaining councils are pretty vaguely defined and their policies are to a large extent made up as they go. If you look at the official document regarding conciliation and arbitration proceedings for the MEIBC you find that it's full of holes and very discretionary. The recent issues the MEIBC is having in the labour courts regarding non-parties and collective agreements arise because these organizations have been poorly defined in the first place. Even with regards to these arbitration hearings we've pushed for clarifications on so many issues, and they simply don't have answers.

    I guess I'm just trying to get a sense if Arbitration at bargaining councils has actually worked for anyone? Or are they more just there to just create a dense fog, so the backlog in the labour courts doesn't grow exponentially.

    My friend is not one to bend on issues of ethics and is a stickler for good business practices. Because of that I think it's fair to say that she will never work for a South African company again. Although I imagine there must be some quality organizations there, my friend's experience has been that they are few and far between. (And that seems to be the experience of many on this Forum) She will work internationally. She has had better experiences with that in the past.

    A pure cost/benefit analysis says sticking it out for this arbitration is not worth it. I think we've been hanging on just based on the principle of the thing.

    Thanks again for responding Dave.




    Quote Originally Posted by Dave A View Post
    I take it the employee is not represented by a union.

    Is the employer a party or non-party to the collective agreements of the bargaining council?

    I ask because the status of the MEIBC is... well, read for yourself here:

    There may be a question as to whether the bargaining council has authority to arbitrate the case at the moment.

    And of course, if it starts going down the CCMA route, and the Minister now accepts and extends the collective agreement, what then?

    Up until recently one would assume the collective agreement would be approved as a matter of course, but recent news of challenges to collective agreements indicates this might not be as assured as in the past.

    Sorry - that probably raises more questions than gives answers. Perhaps the best way of describing the current situation is "there is a lot of uncertainty just at the moment".

    The one thought that did occur is win, lose or abandon, there is nothing preventing your friend from seeking employment in the interim.

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    Site Caretaker Dave A's Avatar
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    Based on your post above, they are near certainly a non-party to the collective agreement.

    It'll be interesting to hear Anthony Sterne's take on this when he reads this thread.
    The trouble with opportunity is it normally comes dressed up as work.

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    I suppose working for any company away from home will draw its bad points due to lack of knowledge of the local law and operations.
    Victor - Knowledge is a blessing or a curse, your current circumstances make you decide!
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    under-the-radar companies.

    Quote Originally Posted by Justloadit View Post
    I suppose working for any company away from home will draw its bad points due to lack of knowledge of the local law and operations.

    No the problem is quite the opposite. My friend is South African and quite well versed in South African labor rules and regulations. The company she worked for exhibited a blatant disregard for those regulations. She knew the regulations, she recognized the violations and documented a multitude of them. Where she erred was in believing that the governing bodies would actually enforce those regulations. I can't imagine that the bargaining councils are entirely in the pockets of companies, they could just as likely be in the pockets of unions. In all likelihood the direction they take probably depends on who is the biggest bully on the block. In this case it's been quite clear that this company has found a way to work the bargaining council (through bribes?) such that a case against them never reaches a judgement. It's an unwritten rule within the company that no one is to join a union else suffer severe repercussions (accusations of theft, final written warnings, etc etc). This helps ensure the company stays the biggest bully.

    And the major corporations that contract work out to smaller 'under-the-radar' companies such as this one love it because they avoid the scrutiny of the unions, and get a cheap non-union labour force, while getting to turn a blind eye to the details of how those companies treat their employees.

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    Platinum Member sterne.law@gmail.com's Avatar
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    Just some of the points raised at this stage -
    Constructive dismissal is probably the hardest case to win. This may be a staring point.
    You can read http://naickersterne.blogspot.com/20...dismissal.html for some guidance.

    Does arbitration work - yes, but as in many things, money and power demolish the idea of justice. Unfortunately in labour , the employee will be alone against a company with HR managers, lawyers and resources, hardly a fair match up.
    Are CCMA and bargaining councils fair? There is, regrettably, a wild west. Some commissioners are blatantly biased towards employees, some towards employers, and there are those that are excellent.

    The idea behind CCMA and bargaining councils is to provide a faster resolution method.
    Considering that there was only 3 hours of evidence, it is surprising that they have managed to get 6 days out of it, presuming they have not called witnesses. Notwithstanding which, the norm is to say I need 3 days, or 2 days etc. Probably the days were half days and not full days.
    It's tough to tell a person "times up, you cant present your case anymore". This would be the commisioners domain (and/or attorney) objecting to evidencce that is not relevant.

    Strictly speaking, cross examination can only be on evidence presented..
    Telling a person that they cannot discuss a case with a lawyer is a gross irregularity. In fact, CCMA proceedings are not court proceedings, therefore one is not bound by the sub judice rules. This alone would be grounds for review.
    The recusal sounds like another delaying tactic.
    What I am finding intriguing is why all this expense on lawyers. A constructive dismissal only has monetary compensation, re-instatement is not an option, unless your friend was employed for many years and/or earned a massive salary, seems like they would be spending more than it would cost. Of course this may be a flow through of the bully boy mindset.

    Where does it leave your friend? She could take the recusal on review, but considering the commissioners other behaviour this makes no sense, other than if it exposed some bias or collusion (a tough ask though).
    There MAY be an option to go on review and then ask the court to make a decision. Review entails decalring teh process in reaching a decision flawed, the case is then sent back, but you can ask the court to make the decision by showing good cause. Again, however, review proceedings cost money and take time. It may be the best option though (see below) but comes with risk because a court may feel the matter must be fully ventilated.

    I would also believe that if this company has no problem with spending money on lawyers just because they can, then in the event of losing, they will go on review and tie it all up again.

    It is a sad indictment on how the poor little guy is always up against it, we find it all over and it is prevalent in legal battles.

    Returning to the MEIBC vs CCMA jurisdcition - you said the matter was over 15 mths ago, hence it happened before expiry of any agreements. In the absence of knowing what industry, We cant comment if the company can be a member of the MEIBC. Many company's are not a memebr of their bargaining council (sometimes by choice and sometimes, where it is compulsory, by delinquency) but join to oust jurisdiction. Normally done when the CCMA form comes, then argue jurisdiction. Employee has to refer to the bargaining council but is now out of time.
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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    MEIBC is corrupt

    The MEIBC's policies do change and are made up as they go. I have had many experiences with them. None good, and despite having all in order and being well prepared, they still stonewall you. When you question their outcomes and actions they cannot give you a definitive answer or any logic reasoning. They are corrupt and will manipulate every situation in their favor to earn. I have started a Facebook group to start bringing their corruption to light as many I know, including myself refuse to employ because of their unbalanced ways. https://www.facebook.com/groups/MEIB...g.SA.Industry/
    They are without doubt destroying industry and impeding job creation on a massive scale. I know of many labour attorneys who openly admit that they cannot win against the MEIBC irrespective of how well prepared or how strong their case is. I also know that the MEIBCs 'Agents' earn commission over and above their basics. It is that commission structure that is the catalyst to always win against the business owner or company.

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    The bargaining councils are not fair. Their 'fairness' extends only to what they can earn out of the case. I have had many situations where the CCMA have thrown the case out as the complainant had no case. Only for the MEIBC to take on the complainants case and stonewall the company into paying hefty fines and payouts.
    As I've said below, the MEIBC agents earn on a commission structure. The MEIBC also force compliance and backdate fees until the businesses inception. Small business cannot survive this and are closing down putting many out of work as a result.

    Try understand this? A general worker and cleaner in an office environment's minimum wage is around R13/hour. The exact same position in a metal engineering business where the general worker and cleaner works (cleans) in the workshop has to be paid more than double that according to the MEIBC's policies. The MEIBC claim that its because they don't know whether that general worker will touch any equipment or machinery. Which he does as he gets employed to clean them. Absurd !!

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