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.