Should any employee have a dispute with his or her employer this dispute must be managed carefully and in particular in accordance with the Labour Relations Act and the Basic Conditions of Employment Act.
Normally disputes are settled internally within the employment arena and many employers have grievance procedures set up to enable employees to air their problems to obtain an easy and quick resolution. Employers have access to disciplinary codes and disciplinary hearings if a dispute has progressed beyond the warning stage.
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If the employer's business falls within the ambit of a bargaining council then the employer and the employee are obliged to use the structures as set up by the bargaining council and the bargaining council agreement. Employees will normally be able to ascertain from their payslip as to whether their business falls under a bargaining council. An employee will note certain deductions made from the weekly or monthly pay which will be given over to the bargaining council. If this is the case, the employee is obliged to approach this bargaining council if a dispute arises in the employment arena.
Likewise, if the employee is dismissed for whatever reason or is forced to resign, this employee has the right to refer that particular dispute to the bargaining council for their adjudication in due course.
By far the majority of disputes will be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) which is a specific dispute resolution body set up by the Department of Labour in order to ensure that the disputes are properly run and controlled. These adjudication bodies specifically train conciliators (mediators) and arbitrators to ensure that the conciliations and the arbitrations are properly run in accordance with the law. These trained officials are enjoined to be both fair and expeditious.
The CCMA has had enormous success in the past and has managed to settle and/or adjudicate disputes within two months of being referred. The CCMA also has training functions and is adept at peace-making between labour unions and management.
Employees and/or their representatives should understand that there are certain time limits attached to disputes. These time limits should be adhered to and the correct forms can be downloaded from either the CCMA website or the Department of Labour’s website. For instance, an alleged unfair dismissal must be reported to both the employer and the CCMA (alternatively the Bargaining Council) within 30 days of the dismissal. The employer would receive a copy of this referral form and has a choice to appear at the mediation process prior to the adjudication process. It should be said that the mediation role of the CCMA has been hugely successful and more than 70% of the cases are mediated before they lead to an arbitration ruling. The form that needs to be filled in by the employee is called LRA form 7.11. It is simplistic and easily completed within a few minutes. If any employee has an issue with completing the form or obtaining a copy, it can easily be obtained on the 4th floor, 78 Darling Street, Cape Town. The CCMA has official advisers on call during business hours five days a week. The system is efficient and, although the number of disputes arise exponentially, the officials are adept at sorting out the administration quickly and properly.
My experience at the CCMA and the Bargaining Councils has been a pleasant one and, unlike many other government departments, the personnel are friendly, helpful and normally correct. Most employees find the dispute with the employer very stressful and this mechanism does tend to tone down the vitriolic nature of disputes.
If the mediation process is unsuccessful, the dispute is then referred to an arbitration by completing a form LRA 7.13. Once again, this form is simplistic and geared to be understood by every single employee. The labour legislation is structured in such a way that it is easily understood, making for a more workable dispute resolution process.
The parties would be expected to appear at the allotted time, date and place for the arbitration which is a much more formal process and almost akin to a structured debate. Both the employer and the employee are expected to have their witnesses come on the day of the arbitration and are expected to bring all the evidence required for that arbitration.
Arbitrators normally give a written ruling 30 days
after the hearing's completion, which is sent to both the employer and the employee. Arbitration rulings are final and binding. There is no appeal. An arbitration ruling in favour of an employee could be enforced and made an order of the Labour Court. The CCMA often instructs the Deputy Sheriff to have these awards served on the employer if the employer has not complied with the arbitration order.
Unlike other litigation, labour litigation is quick and easy, less stressful and less complicated.
Employees can be represented by trade unions and in some cases by lawyers. Likewise, employers can engage the employers organisation to help them and/or their own attorneys. Arbitrators often run arbitrations as informally as possible so as to create a situation where all parties know and understand what is being undertaken.
* Michael Bagraim is a labour lawyer.
** The views expressed here are not necessarily those of Independent Media