Results 1 to 3 of 3

Thread: Limiting frivilous Cases at CCMA

  1. #1
    Platinum Member sterne.law@gmail.com's Avatar
    Join Date
    Oct 2009
    Location
    Durban
    Posts
    1,328
    Thanks
    38
    Thanked 561 Times in 410 Posts
    Blog Entries
    7

    Limiting frivilous Cases at CCMA

    Dave your comments in the thread regarding the Consumer Protection Act and my reading a report on the status of the CCMA gave me an idea.

    The Con/Arb process was initiated in order to speed up the process by nature of the fact that the whole issue could be concluded in a day rather than conciliate and then return another day. Arguably, in my view, this had an opposite effect. I for one always advise employers to object to con/arb and the process is therefore split. This is not as a time delay tactic but rather one of reasoning. If the arb is going to take place, then all the parties need to be prepped and present, all costing money. It also reduces the chance of settling as the costs for preparing have been incurred. By only having the conciliation, there are no preparation costs and that budget is available for settling. In addition pretty much anyone can be sent to the conciliation.
    Now to return to the idea of pre screening or some such idea -
    my thought is to have the conciliation act as a form of pre trial/pre screening. If the parties can not settle instantly the commisioner then asks for some facts, with written supporting documents being allowed. Anything presented is not priveleged and is available at arbitration (that is if you bring faked or documents that are unsubstantiated you will face problems later)Perhaps by extending this fact searching mission the commisioner could then make certain rulings. If the employees case looks extremely frivolous or without foundation make a ruling throwing it out. eg employee was caught on camera stealing R1000. The applicant can still bring the matter to arbitration but perhaps must pay a cost order deposit of say R1000. Where the Commisioner feels that the applicant has a weak case or is being unreasonable at the offer on the table, eg applicant has 4 months service, 3 warnings for time keeping and was then dismissed and is unlikely to get more than 3 months as an award IF successful. Employer is offering 6 weeks or 2 months. The commisioner makes an advisory type ruling and applicant must lodge R500 towards costs.

    In turn if the matter does go to arbitration the commisioner must take these previous actions or recomendations into account when deciding on costs orders.
    Perhaps an idea worth exploring.
    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.

  2. #2
    Site Caretaker Dave A's Avatar
    Join Date
    May 2006
    Location
    Durban, South Africa
    Posts
    20,981
    Thanks
    3,056
    Thanked 2,463 Times in 2,068 Posts
    Blog Entries
    12
    I like it, but the CCMA staff need to get a bit closer to centre too if it's going to make a difference.

    I recently had to go through the CCMA process on this dismissal for theft case I reported here earlier.

    I debated splitting the con/arb and kicking it straight to arbitration by skipping the conciliation appointment, but decided "let's get this over in a day and as quickly as possible."

    Well, it wasn't over in a day. As the employee was demanding reinstatement and wouldn't budge and I had a slam dunk defence ready for arbitration, the conciliation process got nowhere pretty fast. But from there it got interesting - she claimed to have a witness that wasn't available for that day. Conciliation moved on to allowing rescheduling and me, being the "fair and entirely reasonable employer" granted the arbitration be heard another day - with the employee being warned to be properly prepared or face a cost award.

    Come arbitration day, the employee's mystery witness was still not there and the identity of said witness could not be divulged. Not entirely unexpected for my part

    But we also had a new commissioner and interpreter who clearly had been briefed on the merits - and promptly spent an hour and a half pursuing mediation, mainly in an attempt to get it into the employee's head that her case was unwinnable and she should rather pursue a settlement I might accept.

    Now why would they have the notion that her case was unwinnable before any evidence had been led to them?

    Clearly the mediators are already making notes and those notes are reaching the arbitrators prior to them hearing the case.

    What you propose looks like it wouldn't take much more than what is happening already - even a rough judgement call is being made at conciliation by the looks of things.
    The trouble with opportunity is it normally comes dressed up as work.

  3. #3
    Platinum Member sterne.law@gmail.com's Avatar
    Join Date
    Oct 2009
    Location
    Durban
    Posts
    1,328
    Thanks
    38
    Thanked 561 Times in 410 Posts
    Blog Entries
    7
    At conciliation although evidence is not led, the commisioner listens to each side and may puruse certain facts in order to form an opinion. From this they will be advising a party not so much on the strengths of their case but as to if the offer is a good one in light of what could happen at arbitration. So, yes, I am suggesting a mere extension of this process and make employees realize that they cannot just take everything to the CCMA. I would also propose taht were a union or for that matter any representative is involved taht the deposit for cost be increased and covered by the representative or they also be liable, more so than the applicant.
    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.

Similar Threads

  1. Absconding Deserting Employees
    By Marq in forum Labour Relations and Legislation Forum
    Replies: 34
    Last Post: 04-Jan-13, 10:18 AM
  2. [Article] CCMA Conciliation Stage Procedures for reaching settlement
    By BBBEE_CompSpec in forum Labour Relations and Legislation Forum
    Replies: 0
    Last Post: 27-Nov-09, 11:37 PM
  3. [Article] How the CCMA Can Help You in South Africa
    By BBBEE_CompSpec in forum Labour Relations and Legislation Forum
    Replies: 0
    Last Post: 27-Nov-09, 11:35 PM
  4. The first-timer's guide to attending a CCMA hearing
    By BBBEE_CompSpec in forum Labour Relations and Legislation Forum
    Replies: 0
    Last Post: 27-Nov-09, 11:25 PM
  5. Has business lost faith in the CCMA?
    By Dave A in forum General Regulatory Compliance Forum
    Replies: 4
    Last Post: 05-Nov-08, 11:16 AM

Did you like this article? Share it with your favourite social network.

Did you like this article? Share it with your favourite social network.

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •