Unfortunately, as the pandemic rebounds and the economy is still in the doldrums, we have seen more and more dismissals and in particular retrenchments. There are still many employers who are ignorant of our various pieces of labour legislation and in particular the Labour Relations Act.
It is the Labour Relations Act that governs fair dismissals and ensures that employers follow not only fair procedures but respect the laws when it comes to the merits of every single dismissal. These cases are often challenged by the individuals who have been dismissed.
The entity set up by the Department of Employment and Labour, as required by our constitution, is the Commission for Conciliation Mediation and Arbitration (CCMA).
This commission, helped by the various bargaining councils, is both the sword and the shield of the legislation. The CCMA ensures that our laws are respected and implemented and also ensures that justice is done when employers have fallen foul of the law.
In many cases, employers have done the right thing and followed the right procedure and the CCMA rules.
These rulings allow the parties to get an opinion from a third party who is independent and properly trained.
The various commissioners (arbitrators) are unbiased and well versed in all the labour legislation. The commissioners need to fit in with the rules and conditions of the CCMA.
The CCMA is a creature of statute and unlike our High Court, there is no inherent jurisdiction.
To make the structure work smoothly and properly, the CCMA has set out its own rules for the conduct of proceedings before the CCMA.
These rules apply to all cases and are carefully followed in every instance. If the rule is not followed then the ruling from the commissioner can be challenged at the Labour Court by way of Review.
There is no appeal from the CCMA, but should either party feel that the rules were not properly implemented or respected, then there is a path to a Labour Court judge who will investigate the allegations and possibly overturn the ruling and even sometimes send it back to the CCMA.
It has been said that the CCMA is the jewel in the crown of the Department of Employment and Labour, and the way to keep this jewel shining is to ensure that the rules are well maintained and adhered to.
Unfortunately, with the various budget cuts that the CCMA has faced and will face over the next few years, the functioning of the CCMA has been severely hampered.
The hampered functioning will tarnish the shine from that jewel, but hopefully our committed CCMA administration will ensure that the commissioners carry on delivering their expertise both through the CCMA itself and the various bargaining councils in South Africa.
This institution has been copied in many other jurisdictions and I am well aware that lawyers across the globe understand that the service delivery from the CCMA has always been superb. In my travels to other countries, I am often asked by labour lawyers about the functioning and abilities of our institution and how labour peace is kept.
The structure, both in law and in practice of, our labour disputes is simple and accessible and is often said to take the nastiness completely out of the dispute. All disputes are subject to a two-step process where firstly the parties are asked to conciliate (mediate) their dispute.
This conciliation structure has proved to be almost 70% successful and saves much time, money and effort when a case is resolved this way. It is often said that a successful mediation is where both parties leave the CCMA without a smile.
However, both parties fully understand that a bad settlement is far better than taking a risk. This bad settlement would also mean a good relationship thereafter.
Unfortunately, our lawmakers often see their way clear in trying to fix something that isn’t broken. We are seeing the legislature trying to complicate the legislation by various amendments and trying desperately to interfere in the economic environment by way of further and harsher labour regulations. We are going through a negative period of employment where our youth are over 60% unemployed.
The system now calls for an easing up as opposed to greater regulations.
* Michael Bagraim is a labour lawyer. He can be contacted at michael@bagraims.co.za.
** The views expressed here are not necessarily those of Independent Media.
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