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,

[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.)

[Just Gone]

What do i do in my case i was called to conciliation last year august - both parties agreed that i would take him back as i had never fired him. He came back in sep on the mon morn and walked out again as he refusedvto sign a letter of appointmentment. He went back to ccma and laid a new case where i ignored the conciliation meeting, sent them e mails explaining what had happened which they ignored - now i have arbitration on friday?

[AmithS]

sterne.law@gmail.com, thanks for information, it helps me understand this alot better.

The objection to the con-arb process how do you go about doing this?

In the fax I received under point 11 "I\We object to the arbitration process commencing immediately after the conciliation in terms of Sections 191 (5A)(c) the employee has signed this point. Are you referring to this?

Thanks,

[sterne.law@gmail.com]

If the employee signed it then it is supposed to be set down as conciliation only, this rarely happens, so best to send a notice to employee and then CCMA. (Does not matter if employee receives before the day or not)

it does not need to be fancy, I think the CCMA would have a notice on their web site

[sterne.law@gmail.com]

Objection to con/arb template

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.