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