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Ivan Israelstam
What can be worse for an employer than being taken to the CCMA? Perhaps it is finding that too many CCMA commissioners are incompetent and that, at the same time, you have a poor understanding of the law that the CCMA applies. This is a double peril because if the employee has a competent legal representative, he or she will be able to tie both you and the commissioner in knots due to your ignorance and incompetence.
Not all CCMA commissioners are incompetent. I have presented cases before some highly competent arbitrators. However, as the outgoing director of the CCMA has said, "poor performance by some of the commissioners is affecting the organisation's performance" Edwin Mohlahlehi was reported in the Business Times on July 17 as saying that some commissioner performances had been so poor that the CCMA had had to impose penalties on them.
This is a strange statement, especially coming from a body responsible for dealing with workplace issues. Should a body as crucial as the CCMA have hired such incompetents in the first place? Mohlahlehi is quoted as blaming the CCMA's appointment criteria. He claims that commissioners are now trained before commencing duties. Should this not always have happened? Should the CCMA wait until incompetence gets to such serious levels before acting? And should management be imposing penalties on incompetents or should they be speedily replacing them with competent commissioners?
The CCMA also admits that some arbitration awards have been submitted late and others have been badly written. The Labour Court is likely to agree, going on the number of successful arbitration award reviews handed down. Another startling comment is: "The majority who use the CCMA are on a lower income scale and have little or no expectations in terms of customer service." This is a serious indictment on the service that the CCMA is supposed to be providing. Mohlahlehi says that despite the problems, the CCMA makes workplace justice more accessible.
However, true justice cannot be a hit and miss affair. Employers and employees should have confidence that they will be dealt with professionally, expertly and consistently. Uncertainty on whether or not you will have a competent arbitrator is bad enough. However, if you also arrive without labour law expertise you are doubly weak. If the arbitrator is weak and you are strong in labour law, you may well be able to help the arbitrator see the light. If your knowledge is bad, you are a sitting duck for your opposition's legal representative. Ignorance of the law is no excuse, so employers who do not know the law normally come off second best.
Why do employers, 10 years after the creation of the LRA, still not know the law? There are many reasons:
- The LRA has been badly written in parts and is therefore confusing to employers;
- The vast difference in interpretation by arbitrators and judges adds to the confusion;
- Even laws that are reasonably clear and less subject to interpretation are complex. For example, it is unambiguous that an employer must give an employee a hearing before firing him/her for misconduct. However, how that hearing must be conducted is complicated.
- Employers are unwilling to spend the time and money necessary to train their managers on how to discipline workers.
In the light of the director's comments, it is clear that parties will not know what level of expertise they will find in the arbitrator who hears their case. The best a party can do is to ensure that they spare no expense in going properly equipped to the CCMA.
In this way they will be able to:
- Distinguish between good and bad arbitrators;
- Tactfully point out to the arbitrator where he/she might be erring;
- Recognise which acts of the arbitrator need to be taken on review.
Being properly equipped to go to CCMA includes:
- A firm grasp of the laws of evidence;
- A thorough understanding of the LRA;
- Continuous updating of one's knowledge of case law.
Ivan Israelstam is chief executive of Labour Law Management Consulting.Contact him on 011- 888-7944 or via e-mail:
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Our thanks to Ivan and the Star newspaper for the permission granted to publish this article
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