Archive for CCMA

Where to go with an individual retrenchment dispute?

Posted in Dismissals, Questions and Answers, Unfair Dismissal with tags , , , on October 8, 2009 by labourlawoffices

The powers of a CCMA or Bargaining Council Commissioner in respect of procedural unfairness in individual operational requirements dismissals became problematic when a Labour Court decision found that the CCMA has jurisdiction only if the dispute relates to substantive fairness.  If procedural fairness is at issue, the Court held the CCMA was deprived of jurisdiction and the matter had to be referred to the Labour Court.

However, a more recent Labour Court decision has decided differently on this issue.  The Court found that the wording of Section 191 (12) of the LRA is clear and a single employee dismissed for operational reasons is free to refer the dispute either to the CCMA or to the Labour Court on whatever procedural and or substantive fairness basis the attack may be mounted.

The CCMA has now also followed the guidance from the most recent Labour Court decision and it follows that an individually retrenched employee can prosecute an unfair dismissal claim in either the CCMA / Bargaining Council or the Labour Court, at his / her discretion.

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Can I have my lawyer at a CCMA hearing?

Posted in Disciplinary hearings with tags , on September 7, 2009 by labourlawoffices

Legal representation for an employee during a disciplinary hearing or at the CCMA is often a point of contestation.  The general position in regard to the right of an employee to be legally represented at a disciplinary enquiry and / or during CCMA / Bargaining Council arbitration includes the following:

The general rule is that legal representation at a disciplinary enquiry is not allowed unless the employer’s disciplinary code and procedure or the employee’s terms of employment permit it.  Generally, an employee may only be represented by a fellow-employee or trade union representative, and not a legal representative.  However, our Courts have decided that in cases where complex issues are concerned, legal representation may be permitted.  If the matter is unusually complex involving complicated evidence and difficult issues of law, the refusal of legal representation could result in the disciplinary proceedings been regarded as unfair.  However, if the matter is fairly straight forward, the evidence to be led clear, and no complex legal questions arise, the refusal of legal representation would in all likelihood be considered to have been fair.

The criteria for allowing legal representation is whether or not the failure to do so may render the disciplinary proceedings procedurally unfair, and this would in turn, involve a consideration of the nature and complexity of the disciplinary charges, the degree of factual or legal complexity, the availability of a co-employee representing the employee, and the legal capabilities of the complainant, the employee and the disciplinary chairperson.

When an employee requests to be legally represented at a disciplinary enquiry, and the company’s disciplinary code and procedure does not permit such representation, the employee should be informed that the company’s disciplinary code and procedure does not permit legal representation at disciplinary enquiries.  The employee may then be allowed to prepare an argument for the disciplinary enquiry chairperson to consider on why legal representation should be allowed, despite the provisions of the company’s disciplinary code and procedure.

The employee may rely on a legal representative at a disciplinary enquiry for this purpose.  The company would also be given an opportunity to be so represented during this aspect of the hearing.  At the disciplinary enquiry the chairperson will hear the legal representative only on the issue of why legal representation should be allowed.  The employer representative or legal representative for the company will also be granted an opportunity to argue the matter.

The chairperson of the disciplinary enquiry will then apply his / her mind to the question whether fairness in the circumstances requires that legal representation be permitted. In considering the request, the disciplinary enquiry chairperson will consider all the circumstances of a case in order to determine whether the refusal would render the proceedings procedurally unfair.  The chairperson will not be allowed to rely simply on the fact that the company’s disciplinary code and procedure does not allow for legal representation in coming to a conclusion.  By refusing an employee the right to legal representation irrespective of the circumstances of his / her case is inconsistent with the constitutional right to fair labour practices and the common law.

Whereas no legal representation whatsoever is allowed at CCMA / Bargaining Council conciliation proceedings, a party’s entitlement to legal representation at arbitration proceedings is specifically regulated.  If a dispute concerns a dismissal involving misconduct, incapacity ill-health or incapacity / poor work performance, legal representation is only allowed if:

  • The commissioner and all the other parties agree, or
  • If the commissioner decides that it would be unreasonable for a party to proceed without such representation.

A legal representative may represent a party at all other arbitration hearings in respect of any other reason for dismissal.  Consultants, Advice Office officials, relatives and friends are, without exception, not allowed to represent a party at arbitration proceedings.  Once again, a legal representative should be permitted at arbitration to argue the merits of why in circumstances of that particular matter, a commissioner should exercise his discretion in allowing legal representation on behalf of a party.

When does lying under oath cost and employee his job?

Posted in Dismissals, Employee misconduct, Unfair Dismissal with tags , , , , on January 16, 2009 by labourlawoffices

Introduction

In the recently reported Labour Appeal Court case of Maepe v Commission for Conciliation, Mediation and Arbitration and Another (2008 ) 29 ILJ 2189 (LAC) the appellant employee was dismissed for various incidents of sexual harassment. A CCMA commissioner found that the employee’s conduct did not amount to sexual harassment as defined in the Code of Good Practice: Dismissal, but that the sexual advances made by him did amount to inappropriate behaviour for a person in his position. The employee had been a convening senior commissioner of the CCMA.

The CCMA held that dismissal was not an appropriate sanction and re-instated the employee subject to a final written warning. The CCMA brought an application to review the award on, inter alia, the ground that the commissioner had committed a gross irregularity in that he had failed to consider and attribute weight to the fact that the employee had given false evidence both at the disciplinary enquiry and in the arbitration proceedings.

Labour Court decision

The Labour Court was unable to determine from the award whether the commissioner had considered the false evidence by the employee, but ruled that the dishonesty of the employee was a highly relevant issue and that, had the commissioner considered it, he would have come to a different conclusion.

The Labour Court accordingly granted the CCMA an order which in effect upheld the employee’s dismissal. The employee then appealed this decision to the Labour Appeal Court. The employee contended that, as the CCMA had not pertinently raised the issue of his dishonesty at the arbitration, the commissioner correctly did not consider the issue and the CCMA could not rely upon it as a gross irregularity. He also contended that, since the Labour Court had correctly held that his giving false evidence under oath was relevant only to the determination of the appropriate relief, the giving of false evidence could not convert an otherwise unfair dismissal into a fair one. There was therefore no basis in law for the Labour Court’s decision to deprive the employee of all relief, which was the effect of the judgement of the Court.

The employee also argued that if the CCMA wanted to avoid an order of re-instatement, it ought to have led evidence to establish that a continued employment relationship would be intolerable.

Labour Appeal Court decision

The Court found that the commissioner had been aware of the position that the employee held with the CCMA and that he had given false evidence. The commissioner ought to have appreciated the importance of the employee’s being a fit and proper person to occupy the position of a convening senior commissioner if he were to be re-instated in this position.

The Court below was therefore correct in concluding that, had the commissioner applied his mind to the effect on his job of the employee’s conduct in giving false evidence, he would not have ordered re-instatement. The Labour Appeal Court found that it was unfair that the employee should be denied any relief. Since his re-instatement was impracticable, it was just and equitable that the employee be awarded compensation equivalent to 12 months’ remuneration.

Although a commissioner is required to give brief reasons for an award in a dismissal dispute, he can be expected to include in such brief reasons those matters or factors which he took into account which are of great significance to or which are critical to one or other of the issues he is called upon to decide. While it is reasonable to expect a commissioner to leave out of his reasons for the award matters or factors that are of marginal significance or relevance to the issues at hand, his omission in his reasons of a matter of great significance or relevance to one or more of such issues give rise to an inference that he did not take such matter or factor into account.

In the present matter the employee’s conduct in giving false evidence under oath was so critical to the issue of relief that in the Court’s view, the only explanation for the commissioner’s failure to mention it in his reasons as one of the factors that he took into account is that he did not take it into account. If the commissioner had considered such a critical factor, he definitely would have mentioned this in his award. In the Court’s view the fact that the commissioner did not mention this very critical factor in his award justified the drawing of the inference that he did not take it into account.

Section 193 (2) of the Labour Relations Act, 1995 obliges the Labour Court or an arbitrator to order the employer to re-instate or re-employ an employee whose dismissal it has found to be unfair for lack of a fair reason or whose dismissal it has found to be automatically unfair unless one or more of the situations set out in Section 193 (2) (a) – (d) applies namely:

“Unless –

(a) The employee does not wish to be re-instated or re-employed;

(b) The circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;

(c) It is not reasonably practicable for the employer to re-instate or re-employ the employee; or

(d) The dismissal is unfair only because the employer did not follow a fair procedure.”

The situation envisaged in paragraph (b) is where “the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable”. It is possible that insofar as the giving of false evidence under oath occurs in the disciplinary enquiry before the dismissal and where it becomes one of the factors that are taken into account in taking the decision to dismiss, it could be said that it is one of the circumstances surrounding the dismissal. However, the same can not be said of a situation where the giving of false evidence only occurs in the arbitration or at the trial subsequent to the dismissal.

The Court went on to caution that its conclusion that the employee’s conduct in giving false evidence under oath in the arbitration rendered it “reasonably impracticable for the employer” to re-instate him did not mean that this will be the conclusion in each case in which as employee is found to have given false evidence under oath in an unfair dismissal matter. Each case will have to be decided on its own merits. The Court concluded that it would not often be the result because it does not follow in many cases that it is reasonably impracticable for an employer to re-instate such employee. It was precisely because the re-instatement of the commissioner was going to mean that he was re-instated to a position in which he had to expect others to respect an oath when he himself had been found to have shown no respect for the same oath, that makes this case unique in this respect.