Employees and the CCMA

Judging by the number of e-mails I receive from employers, it would seem that the number of referrals made by dismissed employees to the CCMA may be on the increase. A further alarming fact that is emerging is that employees are very often in the position where the employee has far greater knowledge about labour law and fair procedures than does the employer.

I receive not infrequent e-mails from employers, informing me that they had handed a notice of disciplinary hearing to an employee, who has responded by telling the employer that the procedure being followed is either incorrect or unfair in some way – and the employer asks me : is the employee correct ?

Sadly, in many cases, I have to answer " yes – he is correct."

Even more sadly, after a month or two, I get an e-mail from that same client, complaining that the employee has referred a dispute to the CCMA – and questions from my side reveal that the employer, instead of seeking professional advice as we advised him to do, has simply blundered happily on with his unfair or incorrect procedure.

In addition to this, more and more employees are learning that, because employers are frequently inadequately prepared, the employee's referral to the CCMA actually succeeds in the employee being awarded a financial compensation. Even if it is only one month salary, the employee still comes out on top because the referral has cost him absolutely nothing, whereas the employer has retained legal counsel to pull him out of the compost heap.

There is no doubt that awards are being handed down in favour of the applicant employee, even if the dismissal is procedurally and substantively fair – simply because, due to poor or inadequate preparation, the respondent employer, has been unable to prove, to the satisfaction of the Commission, that the dismissal was procedurally and/or substantively fair.

And employees are aware of all this and they take advantage of it. Is it an unfair advantage ? I think not. Any adversary is fully entitled to take advantage of any weaknesses in his opponents defense – that is the name of the game.

For as long as employers continue to treat the requirements for fair procedures as mere window dressing, for as long as what employers will persist in doing everything verbally and keeping written records of nothing, and for as long as employers persist with the attitude that employees cannot fight the employer because "we have more money that he has to fight this", the more employers will find that they might even need a special "CCMA chequebook."

Employees are becoming very wise – they have learnt that the trump card they hold is being prepared. They have learnt that at best, the employer is seldom more than half-prepared – which quite simply, is just not good enough.

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