Tag: CCMA

South Africa could be heading for yet another dark period, with an Eskom strike drawing near, according to The South African.

Having just recently posted a record-breaking R20-billion loss in the last financial year, the struggle power utility is now facing labour disputes.

Between 180 and 200 senior managers are dragging the utility before the Commission for Conciliation, Mediation and Arbitration (CCMA) after not receiving salary increases and incentive bonus in the past year. The managers earn between R1.5 million and R3 million per annum.

Eskom recently granted middle managers a 4,7% increase, but they are dissatisfied and are looking for 7,5%.

Yet a recent report on eNCA states that 365 senior employees have had lifestyle audits conducted on them.

Eskom’s vast wage bill, its poor financial management and its uncontrollable debt mean that load-shedding is likely imminent. The utility is struggling to generate sufficient supply – something that will anger South Africans as rumours of a deal brokered with neighbouring Zimbabwe to supply 400MW of power per week.

 

Be wary of recorded conversations

Contrary to popular belief, companies may be within their rights to secretly record conversations with employees and use that information against them in a court of law. However, the reverse is also true.

Nicol Myburgh, Head of the Human Resource Business Unit at CRS Technologies, says this has the potential to significantly change the dynamic in the workplace.

According to Section 4 of the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA), it is not illegal to secretly record a conversation you are party to. But it is still illegal to do so as a way of intercepting communications to commit an offence, for example obtaining a person’s bank account information.

“The argument that recording these conversations infringes on an employee’s (or employer’s) right to privacy is outweighed when using the recording in court is in the interests of justice. Of course, there is nothing prohibiting the addition of an explicit clause in employment contracts that mitigates against the risk of having communications intercepted.”

Technology has made it incredibly easy to record conversations without other parties being aware of it. Most smartphones and tablets come standard with audio recording features, making it virtually undetectable when somebody runs the app and puts the phone or tablet out of sight.

“Often, these conversations can be used as evidence in disciplinary hearings and other disputes even before they go to the CCMA or court. Further complicating matters is that courts do not hold privacy rights as absolute. Instead, they take other factors into account that can trump privacy rights.”

An example of this is in Harvey v Niland, where evidence was obtained by hacking into the respondent’s Facebook account. Evidence can therefore be presented in various forms and not necessarily only in the form of an audio recording.

Nevertheless, it remains in the best interests of either party to obtain recordings legally. From an employer perspective, fair process must be followed, with the employee being given an opportunity to respond to the evidence presented against them.

“From a legal perspective, it should also be noted that either party can record a conversation that they are part of. But if you are a third party, you need informed consent from one of the other parties to legally record that conversation. It is often this consent that confuses people into thinking all parties must agree to have a discussion recorded.”

Of course, if the recording is inaudible then it cannot be admissible. Myburgh says that employers or employees therefore need to ensure that the audio can be heard, and that the data is stored in a safe place to avoid it being lost, deleted, or edited in a way that will also make it inadmissible.

“Companies are operating in a dynamic, technology-driven environment. It should always be assumed that any conversation or meeting will be recorded, like assuming all work email will be read by a supervisor. In this way, both the employee and employer can ensure no mismanagement takes place.”

Dismissals require relevant evidence

By Ivan Israelstam, chief executive of Labour Law Management Consulting 

Even if an employee has committed murder, dismissal will not be upheld by the CCMA or a bargaining council where there was insufficient evidence brought to prove guilt.

Providing convincing proof of guilt is a factual and skilful exercise requiring:

  • Testimony that is not contradictory;
  • Evidence that, after having been challenged by the accused employee, still holds water;
  • Documents that are validated and that clearly show up the employee’s misconduct;
  • Evidence that is corroborated by other evidence;
  • Testimony from credible witnesses;
  • Evidence derived from thorough and honest investigation; and
  • Evidence that makes the truth look like the truth.

Thus, proving one’s case depends on the bringing of evidence that will persuade the presiding officer that one’s allegations or claims are true and genuine.

However, it is not enough to bring strongly supported or incontrovertible evidence. Parties need to further ensure that the evidence they bring is relevant to the case.

For example, if an employer wishes to convince an arbitrator that an employee stole petty cash it is pointless for the employer to bring solid proof that the employee’s work performance is poor because this is irrelevant.

At the same time it is most infuriating for parties who have gone to the trouble of collecting genuine, solid and relevant evidence only to see the arbitrator ignore this evidence.

Fortunately the parties do have recourse to the Labour Court if a CCMA arbitrator disallows or ignores relevant and legally permissible evidence in making his/her award.

It is not always easy for the presiding officer to decide if evidence is relevant or not because:

• the presiding officer may nor be properly trained to be able to understand what is and is not relevant.

• of lack of clarity of the evidence itself.
• the evidence may only be indirectly relevant to the case. For example, the employee may have been dismissed for poor performance of his/her work. However, the employee might tell the arbitrator that the employer has been victimising him/her for weeks on end. While this seems, on the surface, to be irrelevant, the employee may be able to show that it was the victimisation that caused the poor performance or that the poor performance allegations are false and are part of the victimisation campaign.

It is therefore crucial that parties ensure that they bring their evidence in such a comprehensive, clear and persuasive manner that it cannot be ignored by a fair arbitrator or disciplinary hearing chairperson.

By Ivan Israelstam, chief executive of Labour Law Management Consulting

Employers are entitled to use confessions as evidence in disciplinary hearings.

However, just because an employee makes a confession this does not allow the employer to fire the employee on the spot.

This is because:

• Even where the employee does confess s/he is still entitled to a proper hearing

• The confession may have been coerced

• The employee may not have understood what he was doing when he/she signed the confession

• The act to which the employee confessed may not amount to misconduct serious enough infringement to merit dismissal.

• The CCMA might find, for technical reasons, that the confession was invalid.

We need to look at each of these factors more closely:

Even where the employee does confess he/she is still entitled to proper procedure

The Labour Relations Act (LRA) gives employees the unassailable right to a hearing and not even a confession of murder will allow the employer to deviate from this principle.

Even where the employee properly confesses to an act of misconduct it may not be a serious enough infringement to merit dismissal

Dismissal would be unfair where the employee admits to having arrived half an hour late for work especially if this is a first or second offence because dismissal must be reserved for repeated offences or for gross misconduct.

The CCMA might find, for technical reasons, that the confession was invalid

For example, in the case of FAWU obo Sotyato vs JH Group Retail Trust (2001, 8, BALR 864) the employee signed a confession that he had stolen two bottles of beer. However, the CCMA ruled out this confession on the grounds that it had not been sworn before a commissioner of oaths.

The confession may not have been made willingly

If the confession was made under duress it will not qualify as a confession at all. At best it will constitute a meaningless statement coerced out of the employee; and at worst it will act as proof that the employer was seeking a scapegoat or was trying to concoct a false case against the employee as a means of getting rid of him/her for unacceptable reasons.

The employee may not have understood what he was doing when s/he signed the confession

The employee may be asked to sign a confession document but may, for example, think he/she is signing acknowledgement of receipt of a notice of a disciplinary hearing. Should this be proven the confession will become invalid.

Confessions that are properly made and wisely used can be valuable at disciplinary hearings. The challenge for the employer is therefore to obtain the expertise necessary to ensure that once a confession is made that it sticks and is appropriately used.

Be prepared for con-arb at the CCMA

By Ivan Israelstam, chief executive of Labour Law Management Consulting

The CCMA hears over 180 000 cases a year. This can result in backlogs and delays in resolution of disputes. As a consequence the law provides for a speedier dispute resolution process called con-arb, which stands for conciliation-arbitration.

Regardless of whether con/arb is applied the process always begins with conciliation. This is a peace-making process whereby a CCMA or bargaining council (BC) mediator tries to assist the employer and employee to reach an out-of-court agreement and a quick resolution of the dispute. The conciliating commissioner has no authority to make an award (judgement).

On the other hand arbitration is a judicial-type process that usually occurs if a conciliated settlement is not achieved. At arbitration the employer and employee do not negotiate an agreement. Instead, they bring and present evidence as in any court case so that the arbitrator can make a finding.

Con-arb is when, instead of scheduling the arbitration for a later date, it is held on the same day, the very minute that conciliation fails! Thus, the parties have no time after the conciliation meeting to prepare their evidence and arguments for the arbitration!

Therefore, on receiving any con-arb notice a party who does not want con-arb must lodge a formal objection at least 7 days in advance of the set hearing date. However, such an objection will not be valid if the dispute concerns an unfair dismissal relating to probation or an unfair labour practice relating to probation.

As mentioned, the purpose of con-arb is to cut down drastically the time period between conciliation and arbitration. It could also have the effect of forcing the parties to make every effort in trying to settle the matter at conciliation. This is because they are aware of the arbitration that will take place immediately conciliation fails.

It is essential for employers and employees who receive con-arb notices to:

• Realise straight away that it is a con-arb that has been scheduled
• Understand what con-arb means for them in practice
• Begin immediately with preparations for the con-arb.

This is particularly so because the parties seldom get more than 14 days advance notice of a con-arb.

The parties need to enter into intensive preparations the moment they receive a con-arb notification because:

• 14 days is very little for purposes of preparation
• The parties have to prepare for both conciliation and for arbitration
• Preparation for arbitration in particular takes a great deal of time.

Included in these preparations should be:

• The preparation of the witnesses of truthful, relevant and accurate testimonies
• Collecting and preparing documentary and other evidence
• Responses to anticipated evidence that the opposing party could bring
• Preparation of case arguments and case law.

The Labour Court has found that the dismissal of four of the eight journalists fired by the SABC to be unlawful.

The court ordered that the journalists be allowed to return to work.

The SABC was also interdicted from continuing with the disciplinary action against them.

Trade union Solidarity, acting on behalf of four of the eight journalists — Foeta Krige, Suna Venter, Jacques Steenkamp and Krivani Pillay — lodged an application in the Labour Court in a bid to have dismissals overturned.

Eight journalists were suspended for questioning an editorial decision taken to ban the footage of violent protests where public property was being burnt. Following this seven of the eight were fired.

By Genevieve Quintal for BDLive

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