Johannesburg – Appearing at a Council for Conciliation, Mediation and Arbitration (CCMA) hearing is becoming part of the job for many business owners and managers.
"We've had around 300 CCMA cases," said the operations manager of a fast-growing retail business in South Africa. "With the labour laws in SA, it's inevitable that you'll end up at the CCMA," he said.
In the 2008/2009 financial year, the number of cases handled by the CCMA rose by 6% to more than 140 300.
Dismissal was the reason in 82% of these cases.
The CCMA is projecting a 13% increase in cases for the 2009/2010 year, says labour relations firm Tokiso Dispute Settlement.
Sandile July, labour law expert at Werksmans Attorney, said whether a formal contract was signed or not, the employer needs to satisfy a number of requirements before an employee can be dismissed. The Labour Relations Act will always assume the worker was an employee – even if he or she was hired on a temporary basis.
To avoid a trip to CCMA headquarters, July said businesses should hire employees on a three-month probation period, and extend the three months for another term if they're still unsure of the employee's abilities.
This will allow bosses to simply not renew the contract if they are unhappy with the employee's work.
For underperforming employees, the immediate remedy would be to set up a meeting and discuss clearly defined goals the employee can work towards. The worker needs to know exactly what standard is required of him, and by when.
Every attempt to remedy the employee's work needs to be recorded. The CCMA will also look for evidence on whether employees received training to help them achieve their goals.
Proper procedure must be followedThere's no rule of thumb for how many consultations or the type and intensity of training the employee is entitled to.
If the above requirements have been met and the employee fails to deliver, he can be dismissed.
"If they can see that there really was justification, the CCMA will be fair towards the employer," said July.
According to the manager, the first step in hiring staff is to ensure the business is covered procedurally.
"We have a code of conduct, and ensure everyone knows what is expected of them - it's an HR blueprint in effect."
July concurred, saying the employer must ensure employees understand what is expected of them, and that the process is documented.
July said the CCMA aims to protect both the employer and the employee, but conceded that the act favours the employee in most cases. "I have heard of some cases where the employer won."
According to the CCMA, 59% of cases went to employees in the last financial year.
An employee has 30 days from the time of dispute to lodge a complaint with the CCMA, which in turn has 30 days to resolve the dispute.
If the CCMA could not resolve the dispute within this timeframe, a Certificate of Non-Resolution is issued. The employee then has the option of taking the issue to the Arbitration or Labour Court, but this has to happen within 90 days.
Employees accused of stealing are entitled to defend themselves, according to the CCMA guidelines.
July said misconduct, like stealing, is a dismissible offence, but a disciplinary hearing needs to take place when the employee has had a chance to prepare his defence. This panel needs to consist of at least one person independent from the business, he said.
According to the manager, his company now offers a R1 000 settlement after the first conciliation meeting to avoid the travelling costs of another hearing.
"In most cases the employee does not want his job back, but is looking for some financial gain," said the manager.
- Fin24.com