CCMA - questions

[Pap_sak]

If I was found out to have not to have fired a person "correctly" - what would the CCMA penalty on average award? The person has worked for 8 months. 1,2,3 months salary? Any help would be appreciated - I am gatvol of this employee

[BBBEE_CompSpec]

97% of all CCMA cases are lost to the employer through not following procedure. Once the procedure has not been followed your reasons are lost too. Whether the employee has been with you one month or a number of years, the penalty for not following procedure can be up to 12 months. CCMA usually works on "from date of dismissal to date of resolution". There is usually 30 days from the date the LRA Form 7.11 has been submitted till you hear from the CCMA. A further two weeks till the CON/ARB or Conciliation date. No evidence is heard at this stage unless the matter refers to Arbitration immediately. If your reasons are very good you may get away with an offer of two months. If it goes to Arbitration and you have a"bad hair day" Commissioner you may lose up to six months.

The best bet is to reinstate the employee before CCMA declares a date. Then follow procedure to get rid of the unruly employee.

[sterne.law@gmail.com]

As BBBEE points out the award can be upto 12 months. There is no formula per se for calculating an award. The objective is twofold; compensate the employee and also to punish the employer. The second part is arguably where the emphasis lies as it is the employers actions that cause damage to the employee. Hence, where the employer has pretty much followed the rules etc but perhaps erred in a decision the award will be far less than where the employer simply says "theres the door, grap your jacket on the way out" As your employee has not been in employ that long, the compensatiuon he is entitled to is far less tahn an employee who has worked for say 15 years.
There are however 2 factors - procedure (whhich you admit is incorrect) and teh subsatnce or reasons. If you had genuine reasons to dismiss then once again the award will be limited only to the procedure.
A quick tour of the process - Conciliation is where the Commisioner will try and assist the 2 parties to come to a settlement. Arbitration is where evidence is given and the Commisioner makes a decision and an award. Presumably your matter is set for Con/Arb which means that it is all done on one day.
You specifically mention that you do not want employee back - the problem here is that the employee can ask for re-instatement which comes with back pay. So taht would be a problem for you. Perhaps the way forward is to - object to the con-arb taking place on one day. In this manner the conciliation will be attempted and only if it fails does it go to arboitration which will be on another day. With a settlement rate of 85%, and if you prepared to pay upto 3 months, you probably will be good to do the payoff and move on. (Of course this is relevant to the salary) You will obviously not start with an offer of 3 months.
If you fail to come to agreement you are no worse off than you are now and can either wait for arbitration OR try BBBEE strategy.

[Pap_sak]

Well, she hasn't been back to work and she has told people that she is moving to another town. I havn't fired her - just hoping she doesn't come back. So far it's been like this:

1st day - didn't pitch up, no word
2nd day - sent text to say she was sick. later found out she got pissed. I start writing a warning letter, but she has not been back.
3rd day - did not pitch
4th - did not pitch

Would this help my case? I was wondering if she pitches up on Monday....

[sterne.law@gmail.com]

In this case you have not fired her. If she returns Monday discipline for absence. If she has not returned on Monday - you can either a) Do an absconding dismissal.

[AmithS]

Hi Guys,

Need some help on a similar topic here,

I got a copy of the LRA 7.11 faxed to me today (which as far as I read up is needs to be done before submitting to the ccma)

It is with regards to a casual employee that I hired temporarily for about 2 weeks who is now claiming unfair dismissal and no procedure being followed. I have no contract or anything with the person as it was only a casual position!

Please advise on 2 things,
1. What happens next in terms of CCMA procedure?
2. How should I go about handling this situation?

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!!

[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]

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”

[sterne.law@gmail.com]

The term casual should probably be forgotten in the field of labour. Less than 23 hours a month is what qualifies.

I would object to the con/arb process.
A quick tour of the process - Conciliation is where the Commisioner will try and assist the 2 parties to come to a settlement. Arbitration is where evidence is given and the Commisioner makes a decision and an award. Presumably your matter is set for Con/Arb which means that it is all done on one day.
By objecting you have only the conciliation whereby you can try and settle. This process does not require presenting evidence and you can do it your self. Most likely to settle. I would think that the Commisioner will point out to employee that their chances of success are poor.
For your purposes a week or 2 weeks compensation woudl probably be cheaper than attending the arbitration form time and costs point of view. (This is an unfortuante element fo the process, we pay the 2 weeks becuase it is quicker and cheaper, this in turn encourages these frivolous claims.)