CCMA - questions

[sterne.law@gmail.com]

I have attached an example of objection to con/arb. (Take note the heading, case number and address are for Durban CCMA)
the normal service rules apply. Send to employee via reg post, fax or hand deliver.
Send same and proof of service on employee to CCMA.

[sterne.law@gmail.com]

The employee must always show that there was a dismissal, whereafter an employer must show that the dismissal was fair.

Actually an interesting scenario. One line is to raise point in limine at start that the CCMA has no jurisdiction in that there was no dismissal. The converse of that is that the opponent may argue then that the settlement award was not honoured, (unless your settlement had a specific term of reference i,e to return to work by 6 January)

The other scenario is that the employee went AWOl and the position is in suspension pending his return whereupon he will face disciplinary action. Again the problem is that one may then be forced to run a disciplinary hearing.

I think raise the issue as a point in limine that there was no dismissal in that the employee effectively "resigned". Show the letter and your witness taht was tehre when he refused to sign and then walked out.
Emphasize taht if the matter runs you will seek costs. (Not usual to get costs but always worth a shot)

[AmithS]

What about the fact that the business belongs to a bargaining council that we pay fees to and that we follow all the rules as set out by the bargaining council?

Can I request that the matter be referred to the bargaining council which we fall under and are members of?

Thanks,

[Citizen X]

1. Go to the CCMA, it's only conciliation. tell the commisioner that the employee did not exhaust internal procedures before approaching the CCMA, which the CCMA rules requires an employee to do i.e. The Appeal process. Your employee did not appeal to you in writting. The commisoner will almost certainly tell the employee there and then to go back to the employee and appeal in writting first. How is an emplyee defined by law? If the person works for you for more than 27 hours(yes 27 hours) they are a full time employee!!

[sterne.law@gmail.com]

If there is a bargaining council then CCMA has no jurisdiction. Raise the issue at CCMA who will then rule no jurisdiction.
Employee will then have to refer the matter to the Bargaining council, probably be out of time and will need to apply for condonation.

[IMHO]

If the person works for you for more than 27 hours(yes 27 hours) they are a full time employee!!

Is this per week, month or absolute threshold accumulating to over any period of time, starting day one?

[Citizen X]

1. COMPENSATION: CCMA, your first port of call here is section 194 of the LRA which provides:-
“194. Limits on compensation
(1) The compensation awarded to an employee whose dismissal is found to be unfair either because the employer did not prove that the reason for dismissal was a fair reason relating to the employee’s conduct or capacity or the employer’s operational requirements or the employer did not follow a fair procedure, or both, must be just and equitable in all the circumstances, but may not be more than the equivalent of 12 months’ remuneration calculated at the employee’s rate of remuneration on the date of dismissal.
(3) The compensation awarded to an employee whose dismissal is automatically unfair must be just and equitable in all the circumstances, but not more than the equivalent of 24 months' remuneration calculated at the employee's rate of remuneration on the date of dismissal.
(4) The compensation awarded to an employee in respect of an unfair labour practice must be just and equitable in all the circumstances, but not more than the equivalent of 12 months’ remuneration”

[Citizen X]

With the benefit of restful retrospect, I can advise as follows:-
If I were in your position I’d do one of the following:-
1. Go to the CCMA and say, “No, I certainly did not dismiss this man, he is attempting to mislead the CCMA, he stayed absent. That said, he can even come back to work today, but I’ll have to give him a warning for absenteeism without notifying his employer and without a valid reason. Emphasize the, he’s trying to mislead the CCMA bit;
2. I did in fact dismiss him, I’m a small business, the Labour relations Act makes provision for small businesses dispensing with the rules and procedures that larger businesses would follow BUT he did not exhaust internal procedures Mr commissioner as is required by the CCMA rules, he must first appeal his dismissal to me in writing. The commissioner in this case would have to tell the employee to go back to the employee and appeal failing which the employee can come back to the CCMA
3. Your first port of call with any labour law related matter include the latest version of The Labour Relations Act 66 of 1995, The CCMA rules and The Basic Condition of Employment Act 75 of 1997;
4. All 3 statutes have been amended many times over the years, so be careful when you download a statute, make sure that it contains all the latest amendments;
5. COMPENSATION: CCMA, your first port of call here is section 194 of the LRA which provides:-
“194. Limits on compensation
(1) The compensation awarded to an employee whose dismissal is found to be unfair either because the employer did not prove that the reason for dismissal was a fair reason relating to the employee’s conduct or capacity or the employer’s operational requirements or the employer did not follow a fair procedure, or both, must be just and equitable in all the circumstances, but may not be more than the equivalent of 12 months’ remuneration calculated at the employee’s rate of remuneration on the date of dismissal.
(3) The compensation awarded to an employee whose dismissal is automatically unfair must be just and equitable in all the circumstances, but not more than the equivalent of 24 months' remuneration calculated at the employee's rate of remuneration on the date of dismissal.
(4) The compensation awarded to an employee in respect of an unfair labour practice must be just and equitable in all the circumstances, but not more than the equivalent of 12 months’ remuneration”

[Just Gone]

Just as a matter of interest - what would happen if the CCMA did "fine" a company and ordered them to pay out say 3 months to an employee and the company did not comply - what are the implications ? What can they actually do ?

[Citizen X]

Okay, your first port of call is Section 143 and section 145 of the LRA, your second port of call if it involves a mistake is CCMA rule 32.

143. Effect of arbitration awards (LRA)
(1) An arbitration award issued by a commissioner is final and binding and it may be enforced as if it were an order of the Labour Court, unless it is an advisory arbitration award.
(2) If an arbitration award orders a party to pay a sum of money, the amount earns interest from the date of the award at the same rate as the rate prescribed from time to time in respect of a judgment debt in terms of section 2 of the Prescribed Rate of Interest Act, 1975 (Act No. 55 of 1975), unless the award provides otherwise.
(3) An arbitration award may only be enforced in terms of subsection (1) if the director has certified that the arbitration award is an award contemplated in subsection (1).
(4) If a party fails to comply with an arbitration award that order the performance of an act, other than the payment of an amount of money, any other party to the award may enforce it by way of contempt proceedings instituted in the Labour Court.
145. Review of arbitration awards (LRA)
(1) Any party to a dispute who alleges a defect in any arbitration proceedings under the auspices of the Commission may apply to the Labour Court for an order setting aside the arbitration award-
(a) within six weeks of the date that the award was served on the applicant, unless the alleged defect involves corruption; or
(b) if the alleged defect involves corruption, within six weeks of the date that the applicant discovers the corruption.
(1A) The Labour Court may on good cause shown condone the late filing of an application in terms of subsection (1)
(2) A defect referred to in subsection (1), means-
(a) that the commissioner-
(i) committed misconduct in relation to the duties of the commissioner as an arbitrator;
(ii) committed a gross irregularity in the conduct of the arbitration proceedings; or
(iii) exceeded the commissioner's powers; or
(b) that an award has been improperly obtained.
(3) The Labour Court may stay the enforcement of the award pending its decision.
(4) If the award is set aside, the Labour Court may-
(a) determine the dispute in the manner it considers appropriate; or
(b) make any order it considers appropriate about the procedures to be followed to determine the dispute.

CCMA(RULE 32)
32 How to apply to vary or rescind arbitration awards or rulings

1) An application for the variation or rescission of an arbitration award or ruling must be made within fourteen days of the date on which the applicant became aware of-
a) the arbitration award or ruling; or
b) a mistake common to the parties to the proceedings.

1) A ruling made by a commissioner which has the effect of a final order, will be regarded as a ruling for the purposes of this rule.