CCMA - questions

[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.

[sterne.law@gmail.com]

The employee must get the award stamped by CCMA, then a writ is issued and the sheriff must serve. The sheriff can then attach your goods.
If the award is re-instatement, the employee gets the award made an order of court, thereafter an application for contempt of court.

[Just Gone]

So therefore if we have already had a ccma meeting, signed and sealed by both parties for the employee to come back, which he failed to do then he is in fact in breach of the "contract" . How the hell does he then get away with going back to the CCMA and opening another case against me 6 months later !!! ? .... where I now have to appear AGAIN in front of the ccma but with a different case number, but in fact the same case ?

[Citizen X]

Yes, I appreciate your frustration. What you have here is what we call a "professional plaintiff." Now, The CCMa only institute costs at as a last resort where they can see that the applicant is wasting resources. raise those facts you've raised here to the CCMA.

[AmithS]

Thanks to everyone for all the valuable input.

Now here is the new development,

I received a notice from the bargaining council "For the food retail, restaurant, catering & allied trades" notifying me that I need to attend a "CON\ONLY" meeting with regards to the same matter.

I received both within a space of 2 days (CCMA & BC), my thinking at the moment are that the person in question has submitted to both places!!!!!

Additionally I have picked up through the ccma notice LRA 11.7 faxed to me that the person is being assisted by an attorney who is a relative as the attorney firm and person carry the same surname (They are listed as an alternative contact)

What does 1 do in this situation?

[IMHO]

What you have here is what we call a "professional plaintiff."

the person is being assisted by an attorney who is a relative

Well spotted Vanash.

[Citizen X]

Okay, if the employee is assisted by an assited you can rightfully argue that there no no complex legal questions to be argued here. The only time the CCMa will allow an attorney to represent any party both employee and employer is that if the attorney can prove that there are complex legal questions to be addressed that either party cannot reasonably be expected to argue by themselves. On this note the sections that deal with rights to representation have been amended ad nauseum!

[Citizen X]

Your point of departure of objecting to an attorney representing the employee can be found in CCMA rule 25(also amended many times, this is how it currently stands.
1. At conciliation, the employee may only be represented by any member , office bearer or official of that party's registered trade union or registered employer's organisation;
2. At arbitration(and if it’s con arb, then the attorney will not be allowed to represent at conciliation but may be allowed to represent at arbitration if all parties consent and if there are complex legal questions to be addressed that the employee himself cannot be reasonably expected to argue);
3. Might I suggest, that at conciliation you definitely object to the employee being represented by an attorney, the CCMA will accept your object and preclude the attorney from speaking at conciliation;
4. Then at arbitration you object to the attorney representing the employee on the following basis: 1:You do not consent; 2: There are no complex legal issues involved; the fact that the employee has gone both to the CCMA and Bargaining council can count to your favour, don't default yourself, go to both hearings and argue that both organisations cannot simultaneously hear the same matter, the employee must chose between the two

The following is how the law stands on this issue:

25 Representation before the commission

(1) (a) In conciliation proceedings a party to the dispute may appear in person or be represented only by-
1) a director or employee of that party and if a close corporation also a member thereof; or
2) any member , office bearer or official of that party's registered trade union or registered employer's organisation.

(b) In any arbitration proceedings, a party to the dispute may appear in person or be represented only by:
1) a legal practitioner ;
2) a director or employee of that party and if a close corporation also a member thereof; or
3) any member , office bearer or official of that party's registered trade union or registered employer's organisation.

(c) If the dispute being arbitrated is about the fairness of a dismissal and a party has alleged that the reason for the dismissal relates to the employee's conduct or capacity, the parties, despite subrule (1) (b) are not entitled to be represented by a legal practitioner in the proceedings unless-
1) the commissioner and all the other parties consent;
2) the commissioner concludes that it is unreasonable to expect a party to deal with the dispute without legal representation, after considering-
(a) the nature of the questions of law raised by the dispute ;
(b) the complexity of the dispute ;
(c) the public interest; and
(d) the comparative ability of the opposing parties or their representatives to deal with the dispute .

2) If the party to the dispute objects to the representation of another party to the dispute or the commissioner suspects that the representative of a party does not qualify in terms of this rule, the commissioner must determine the issue.

3) The commissioner may call upon the representative to establish why the representative should be permitted to appear in terms of this Rule.

4) A representative must tender any documents requested by the commissioner in terms of subrule (3), including constitutions, payslips, contracts of employment, documents and forms, recognition agreements and proof of membership of a trade union or employers' organisation.

5) [Reg 25 corrected by GN R1748 of 5 December 2003 (as corrected by GN R530 of 30 April 2004).]

[AmithS]

Thanks Vanash Naick, you have been extremely helpful.

I am meeting with the bargaining council designated agent on Monday to sort out my fees for the year. So I am also going to ask her about this situation at the same time and see what her interpretation is.

The only thing that worries me is that in the ccma LRA 11.7 document the person has asked for a translator to be present for 1 on the African languages. I am hoping they don't try and sneak the lawyer in under the pretext of being a translator

[Citizen X]

It's my pleasure,
No, they can't, the interpretor works for the CCMA. Whatever you say in english is translated word for word, whatever the employee says in the said language the interpretor translates word for word. Remember to emphasize that the applicant is attempting to mislead the CCMA and does not have a bone fide cause of action

[AmithS]

So even if they say he is a translator, I can object and say that if the person needs a translator they must use the ccma translator?

Am I correct in saying this?