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Johannesburg - A new judgment by the Labour Appeal Court (LAC) could mean an employee whose employment had been terminated, could have more convenient and affordable access to justice than under the old system, according to Bradley Workman Davies and Kerry Badal of Werksmans Attorneys.
In their view, this could be the practical effect of the LAC’s decision in the recent case between the Commission for Conciliation, Mediation and Arbitration (CCMA) and MBS Transport regarding a party who is successful in the CCMA and who receives a monetary arbitration award in their favour.
Davies told Fin24 on Monday that when an employee receives an award in his or her favour - if the CCMA found an employee had been unfairly dismissed - the question was how to enforce a monetary award, for instance.
He explained that the LAC decision on the case of the CCMA against MBS Transport adds to the ability of the CCMA to be "a one-stop shop for the first stage of the resolution of labour disputes". The case recognises the right of the CCMA to enforce arbitration awards issued by it, through its own process of certifying awards, and without having to revert to the Labour Court to issue the writ of execution.
Accordingly, the new case law has the effect that once the CCMA has certified an arbitration award, such an award is enforceable as if it were an order of the Labour Court in respect of which a writ had been issued.
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"If your employer refused to pay in terms of a CCMA award, the employee used to have to approach the registrar of the Labour Court to issue a writ of execution. This could then be taken to the sheriff of the relevant region. The sheriff would then go to inform the employer that he has failed to make the payment and then the sheriff could, for instance, attach some goods to pay for it," explained Davies.
"It is a cumbersome and costly process. Approaching a different forum to enable the CCMA award to be executed, detracted from the ability of the CCMA to provide an independent and expeditious mechanism for its awards to be enforced. So now the LAC has made a decision that, once the CCMA has made an award, it has the status of a Labour Court order. This makes the process of getting it enforced easier."
Be aware
Davies said his message to employees who find themselves in this kind of situation is to be aware of the fact that the CCMA can issue a certification which can then be taken to a sheriff.
"This approach is quite novel and allows for parties in the CCMA process to continue to use the CCMA to finality in executing against a CCMA award," he explained.
This is in keeping with the overall approach of fairness and equity expounded by the Labour Relations Act (LRA), and supports the concept of an expeditious resolution of labour disputes, according to Davies and Badal. This case against MBS Transport has brought finality to the question of the status of certified CCMA arbitration awards, which, in their view, was long outstanding.
They explained that the CCMA was established by the LRA in 1995 to conciliate and arbitrate employment related disputes as an efficient and cost effective forum within which employees and employers can resolve their disputes. In their view, the CCMA has been a success story in these terms, becoming one of the busiest dispute resolution forums in the world.
In the 2014/2015 financial year, for instance, the CCMA received 171 854 referrals; performed a total of 127 997 conciliations and 43 975 arbitrations; and certified 5 423 CCMA awards.
In its decision in the MBS Transport case, the LAC took into account the argument of the CCMA that employers paid no attention to CCMA orders, because they were aware of the cumbersome enforcement provisions of the LRA.
Davies and Badal cautioned, however, that it must be noted that the MBS Transport decision by die LAC applies only to the process in respect of CCMA awards ordering the payment of a monetary amount to a party.
If the certified award to be enforced is for the performance of an act rather than for the payment of money - for example reinstatement of the employee - then contempt proceedings may be instituted in the Labour Court if the party which must reinstate, refuses to do so.
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