CCMA Case query

[Rafael]

One of my colleagues has a CCMA case with her old employee, she has come to me for advice and I have looked on the site but can find no answer to my query.

Her meeting is on Monday with her previous employees, and if they cannot resolve it on Monday then it will go into Arbitration .

My question is : On Monday does she tell them what she wants as compensation or how is that amount agreed upon.

The CCMA Case is for the following:

- Dismissal
- Unfair Treatment
- Defamation of Character
- Invasion of Privacy
- Harassment
- Intimidation

She has all the evidence.

Thank you for assistance

[HR Solutions]

Rafael - I am not an expert on CCMA, but have been to one or two on behalf of some of our clients.
The case is normally heard by the CCMA - Both parties have your chance to put forward your cases.
Its not really about what "she" wants, more about what is rightfully owing or not owing according to the CCMA.
They might find in her favour and work out if she was wrongfully dismissed etc and if she battled to find another job in which case they will award compensation if she is in the right depending on the circumstances. They are normally quite fair and if she has all evidence it would be in her favour, but bear in mind that her ex employer will also come with their evidence.

[Dave A]

I have been involved in mediation where the employee just wanted "something". My offer was "zero", which she flatly rejected because it wasn't "something". Just what "something" might be took the two mediators a couple of hours to extract out of her.

So it certainly helps if the employee has a clear idea of what she wants. Actually getting it is another thing completely of course.

My question is : On Monday does she tell them what she wants as compensation or how is that amount agreed upon.

During the mediation stage, it's entirely subject to negotiation. If the two parties agree to a settlement, then that's the deal. The mediators will try hard to get the parties to agree - and they're pretty good at it.

If there is no agreement coming out of the mediation, then it'll go to arbitration, at which point HR Solutions' observation will certainly become relevant:

Its not really about what "she" wants, more about what is rightfully owing or not owing according to the CCMA.

Obviously the better you argue your case, the better your chances of a favourable ruling.

[roryf]

Dave is 100% correct.It is probably a Con/Arb, meaning that if both parties can't come to an agreement at the concilliation part of the meeting then it goes straight to arbitration unless the employer has requested a different date for the arbitration.

The first part of the meeting is the concilliation part.The Commissioners try very,very,very hard for a settlement (I am sure that they get comm!) and will send hours trying to get a settlement.Provided your friend isn't unreasonable and has proof of everything that she is complaining about she should get a settlement from the company.

She needs to take all supporting documentation with her in case it goes to arbitration.

The commissioners look at time of service,circumstances surrounding the dismissal,salary.The commissioner will tell her roughly what to expect and if she is being unreasonable.

Be prepared to stand/sit in the passage for long periods of time.

These are my findings from going 5 or 6 times as the employer.

[Citizen X]

Hi Rafael,

Just to add, paint a bigger picture if you will:

The employee started this journey by completing a ‘7.11’ form, she served it on the employer, retained proof of service and then served it on the CCMA(CCMA rule 5). On her form she cited unfair dismissal as the bigger issue though there’s others.

1. At conciliation there’s usually no resolution, this then means that a certificate needs to be issued by the commissioner stating that the matter remains unresolved[From an employer’s side, if you have an appeal process and the employee didn’t use that process and proceeded straight to the CCMA, you can argue that the employee didn’t exhaust all internal procedures, this then forces the employee to come back to the employer and appeal]
2. Arbitration: If it isn’t ‘con-arb,’ and the matter is not resolved at conciliation then the employer must complete another separate dorm form ‘7.13,’ and serve it on all parties in the prescribed manner. Arbitration is a bit more formal than conciliation in that evidence is led i.e The employee must prove that a dismissal took place and the employer must prove the dismissal was both substantively as well as procedurally fair;
3. The benchmark measure is ‘balance of probability,’ whose ever version is more probable on a balance of probability within the guidelines for dismissal for misconduct in schedule 8(LRA);
4. Both can bring witnesses, both can cross examine. Each individual case is considered on its own merits. The commissioner is obligated though to see if the dismissal was both procedurally fair and substantively fair along the schedule 8 guidelines..

[Rafael]

Thank you all for you responses. This is why I love this forum

[Dave A]

Don't forget to let us know how things turned out
Quite often it's useful feedback that can help someone else down the line one day too.

[Patk]

The most important factor when going to the CCMA is to under stand the process. Con/arb is a dual function where the commissioner will first attempt to resolve the issue through conciliation. This is the CCMA and the commissioners first prize. Here it is possible that both employer and employee walk away both feeling dissatisfied with the outcome. This is a normal result and is something that finalises the issue at hand. The second phase in the process is where evidence is assessed by the commissioner and a decision is taken to the detriment of one party. Only one winner in this case and it can be an empty win in a lot of situations.

In order to be successful the following aspects need to be considered:
Are you willing to return to work. If not why not? you will need to prove your reason to stand a chance with your case.
What do you want as the outcome to the matter. Be specific. Saying financial compensation is insufficient. How much and why ? Three Months Because....
Be prepared. Present exact evidence that you can substantiate. Giving vague reasons will do your case no good.
Bring evidence and witnesses wherever these are needed. Don't bring evidence that is not related, or witnesses that where not present or who where not involved. Hearsay evidence will only be rejected by the commissioner.
Be Prepared. Know the case details. Question the other parties reasons and motives.
Be as prepared as you can be, and stick to the facts.
Be Positive if you believe in your case.
Pat Kelly

[Rafael]

Don't forget to let us know how things turned out
Quite often it's useful feedback that can help someone else down the line one day too.

Ok I spoke to her this morning, quite interesting.

The company refused to settle as they were unaware that she had evidence because when she left,they kept the company laptop and all files. A CCMA commissioner was present at the meeting and it ended up going into arbitration straight away.
Attending the arbitration was the COO, The HR manager and spokesman of the company they tried to argue that they didn't expect to go into arbitration on the same day but the commissioner said that he had sent them e-mails stating this.

When the evidence was brought forward they were wide eyed as they had not expected it nor prepared, the commissioner started asking the COO questions but she could not answer and the HR lady was always trying to answer instead, the commissioner kicked the HR lady out of the meeting.

They meeting ended at 17:15 and she has to go again next week Thursday.

My colleagues husband was outside the room when the interpreter walked out and said to one of her colleagues that it is a very strong case for my colleague.

[roryf]

Just like the scouts motto - Be prepared!

Otherwise you pay!