Why do employees challenge the employer’s decision at the CCMA?

In the case Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (CCT 85/06) [2007] ZACC 22 (5 October 2007 at par 76, the Constitutional Court indicates that unions and employees should be encouraged to refer their cases concerning dismissal to the CCMA.

Employers can mitigate the risk of having dismissal cases referred to the CCMA by firstly understanding the reasons why dismissal decisions are easily challenged by employees and, secondly, by taking steps to reduce these risks.

Interesting insights into the risks associated with dismissals are reported, by Hanneli Bendeman in a research report, ‘An Analysis of the Problems of the Labour Dispute Resolution System in South Africa'.

Bendeman identified five categories of reasons why employees easily challenge employers’ decisions at the CCMA.

· The ease of access to the CMA and the perceived ‘user-friendly’ environment, which promote ease of referral, at no cost to the employee. Added to this is the fact that unions encourage referral in all cases, without giving consideration to the merits of the specific case.

· The expectations of the employees that they will always get some form of compensation, irrespective of the merits of their case. The writer indicates that the employees perceive the CCMA as ‘a one armed bandit, lottery or an ATM machine’.

· The lack of knowledge of employees that leads unrealistic expectations that are created when employees receive poor advice from unions and consultants.

· Economic conditions, high unemployment and poverty drive the now-unemployed employees to the CCMA in the hope that some compensation will be received. There is also the perception that the employer will pay in order to dispose of the dispute, in the form of ‘nuisance money’.

· Employers are lacking in knowledge of labour legislation and do not fully understand the underlying principles of ‘fairness’ correctly, resulting in the fact that the employer will dismiss employees easily, because they can easily be replaced.

Conclusion

The employer can take a number of steps to mitigate risk, without having to resort to paying ‘nuisance money’, which can increase instances of misconduct to get money out of the employer.

These steps may include improving key staff’s knowledge of labour relations, using an external chairman for the disciplinary hearing, Pre-Dismissal Arbitration by the CCMA or accredited council or Private Disciplinary and Performance Arbitration.

Editor

Dismissal for misrepresentation of qualifications or job related attributes

In the case Hoch v Mustek Electronics (Pty) Ltd (2000) 21 ILJ 365 (LC) at 372, the employee dishonestly misrepresented her qualifications when she applied for a position. In evidence before the court the employer indicated that he would not have employed the applicant had he known about the dishonesty in order to boost her curriculum vitae.

The court found that the dishonesty goes to the heart of the employer-employee relationship, specifically the relationship of trust. The employee’s insistance that she had the specific qualification irreparably damaged the relationship through the repeated insistance. Dismissal would be an appropriate sanction.

The case Mlotshwa / SABC (2) [2002] 12 BALR 1296 (CCMA), applied the principle that misrepresentation relating to qualifications or job specific attributes will damage the employer-employee relationship irreparably and dismissal will be an appropriate sanction.

In the article Don't lie in desperation to get your dream job
Natalie Fraser, The Star, 25 January 2008, gives advice to employees not to lie when applying for a position.

Editor

The CCMA is positively not a 'court of law'

Tony Healy, in his regular article in The Star,'CCMA is not a court of Law' got me thinking about the findings of the Constitutional Court which confirms that the CCMA is not a court of law:

'However, there are significant differences. The CCMA is not a court of law. A commissioner is empowered in terms of section 138(1) to conduct the arbitration in a manner he or she considerers appropriate in order to determine the dispute fairly and quickly, but with the minimum of legal formalities. There is no blanket right to legal representation. The CCMA does not follow a system of binding precedents. Commissioners do not have the same security of tenure as judicial officers'.Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (CCT 85/06) [2007] ZACC 22 (5 October 2007) , Navsa, AJ at par 85. Paragraphs 82-88 of the case are of relevance.

Tony can be contacted on 011-476-1620 or e-mail healy@global.co.za, he will be conducting a workshop "Essential Disciplinary Hearings" on 7 February 2008.


Editor

Dismissal - A sensible risk management tool

‘Dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise.’ Conradie, JA at par 22 in De Beers Consolidated Mines v Commission for Conciliation Mediation and Arbitration and Others (JA68/99) [2000] ZALAC 10 (3 March 2000)(Own emphasis)

Identifying operational risks

Each business has a set of inherent risk factors, which have to be identified, analysed and through various interventions negated or at least reduced in order to ensure the viability of the enterprise to the stakeholders, including owners (shareholders) and employees.

Identifying risk in the workplace

The employer is always best placed to determine areas of risk in the workplace and also the risk profile of each employee.

In most instances there is a notion relating to the level of trust, which you place in any employee. Although this is based on a ‘gut-feeling’, your intuitive notions are usually right, unless you are blinded by emotional factors.

Rating risk areas in the workplace may prove to be less onerous and it is suggested that the appropriate way to do this is to consider various areas of risk in the enterprise and to give some form of weight to these risks, being high, medium, or low.

For instance in retail the areas of higher risk may be cash handling and also managing trading stock. In the manufacturing environment delivery and cash collecting can be at risk.

In all operations abuse of equipment can be identified as areas of risk, where employees could damage equipment wilfully.

Risk mapping

Through a process of ‘risk mapping’, certain categories (classes) of employees can be specifically linked to certain risk factors.

The examples could be given of stock shrinkage, damage to equipment, gross negligence, conduct impacting negatively on customer relations, assault and intoxication. These are examples where the conduct of employees would increase risk and impact adversely on the viability of the enterprise.

Approaching workplace rules and procedures as ‘risk management’ tools

When drafting workplace rules and procedures, risk factors should always be considered.

Drafting workplace rules and procedures within the risk-management framework

Rating areas of risk and risk profile of employees

Employing people in any enterprise involves elements of risk. The risk profile of the employee only becomes apparent after the appointment and over time. The interaction of the employee in the enterprise and specifically ‘high risk’ areas can increase or decrease the risk profile in that specific area of activity. However, there have to be ‘risk-stops’ in place to ensure that effective action can be taken to reduce the risk.


Planning and drafting of workplace rules

The workplace rules and procedures are usually decided before they are used in disciplinary action against the employee. The Code of Good Practice: Dismissal in item 3(1) encourages employers to have rules, which will give an indication of the standard of conduct required of employees.

Steps for drafting or review of workplace rules and procedures within the risk-management framework

1. Identify the risk areas in the enterprise and link them to inappropriate conduct by employees, which will increase the risk.
2. Identify which groups or categories of employees are likely to impact on the identified risk, either to increase or decrease the risk factor.
3. Analyse what type of conduct should be discouraged and which methods can be used such as counselling, training, warnings and dismissal.


Implementing the rule during disciplinary action

When giving consideration to the rule, which, has been breached, and dismissal is contemplated, the importance of the rule will need to be established. Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (CCT 85/06) [2007] ZACC 22 (5 October 2007) at par 78


When considering or drafting a rule it is important to bear in mind that someone outside the organisation may need to evaluate the specific rule with regard to the following:

1. The importance of the rule.
2. The purpose of the rule.
3. The sanction associated with the rule.
4. The consistence whereby the rule has been applied in the past.
5. Fairness of the rule.


Conclusion

Risk analysis (formal or informal) is an important business management tool, which can be effectively used in the arena of workplace discipline. In this context, it is used to identify risk and the risk associated with negative conduct by employees and it can provide guidance when determining the importance of a workplace rule and the associated sanction, when dismissing employees.

The process need not be formal, especially where small and medium enterprises are involved. It should be seen as an exercise in applying your mind to discipline in the workplace, which will ensure that the entrepreneur does not overreact in a high-tension and emotionally charged environment of disciplinary action.

The process can help to give a balanced perspective on misconduct by employees and highlight important rules for which dismissal would be procedurally and substantively fair.

Additional reference
Risk Management - Wikipedia

The CCMA may overturn the employers decission to dismiss

'The CCMA is entitled to overturn the sanction of dismissal imposed by an employer even if the dismissal sanction could be seen by reasonable people to be fair' - Ivan Israelstam

The above quote refers to the sentiment expressed by the Constitutional Court in, Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (CCT 85/06) [2007] ZACC 22 (5 October 2007), where the court indicates that the CCMA commissioner, may overturn the employers decision to dismiss, where in his ‘own opinion' , the commissioner finds the dismissal substantively unfair (for a unfair reason). The commissioner will need to take the totality of circumstances into consideration, when making a moral and value decision as to the fairness of the dismissal. The Constitutional Court decision was as a result of an appeal from the decision of the Supreme Court of Appeal, where the SCA indicated that the commissioner should 'defer to' (accept) the decision of the employer to dismiss an employee for conduct or capacity ('Reasonable employer test').

The court gives an indication of a very limited list of relevant ‘(totality of) circumstances’, at par 78

‘The importance of the rule that has been breached;

The reason the employer imposed the sanction;
The basis of the employee's challenge to the dismissal;
The harm caused by the employee's conduct;
Whether additional training and instruction may result in the employee
not repeating the misconduct;
The effect of the dismissal on the employee; and
The employee's long-service record.’ (Ed – listed for convenience of discussion)

The court wished to set a flexible rule as opposed to a set of ridged rules when deciding "fairness". The employer retains the right to decide on the workplace rules and procedures and whether to dismiss the employee for misconduct or (in)capacity, however the commissioner or court will decide whether the disciplinary action by the employer was fair (procedurally and substantively)

This list can obviously be expanded substantially and when the employer who makes the decision to dismiss should give consideration to the all the circumstances, creating a quagmire of legal uncertainty for the employer.

In future articles we will look at all the (totality) of circumstances which the employer decision-maker will need to consider before making the decision to dismiss in order not to fall foul of an adverse decision by the commissioner.

Ed - George Smith

Developing a new strategy in the Workplace

'Employers need a strategy to protect against slackers who utilise labour laws.Be safe from those who will take advantage.' Ivan Israelstam The South African Labour Guide

Ivan Israelstam is chief executive of Labour Law Management Consulting. He can be contacted on 011-888-7944 or labourlaw@absamail.co.za