Rules of engagement
The adjudication bodies have set up help centres – use them before going into a dispute
EDUCATION and knowledge are certainly the most useful and vital tools that any person who wants to engage themselves in any litigation has.
Our labour laws have been specifically structured and drafted to ensure that they are easily understood and have formed an extremely uncomplicated dispute resolution process. Despite the structures being specifically geared for non-legal personnel, there are rules that need to be adhered to and there are requirements at the CCMA and bargaining councils. The arbitrators do try and ensure that everything is run in an uncomplicated manner.
The CCMA has established practices and procedures for the referral of dispute and the actual dispute itself. Trade union officials should make it their goal to be well versed in the CCMA proceedings. Human resource practitioners with the employers are duty-bound to ensure that the employers not only follow these rules, but that they adhere to the spirit of the rules and the legislation.
The rules for the conduct of proceedings before the CCMA are similar to the rules in the various bargaining councils. These rules can be obtained from either the CCMA or the Department of Labour, and can be accessed online. It is vital for any individual who is going to represent himself or herself to at least have a cursory look at the rules.
The commissioners do try and outline the structures to first-time litigants and the commissioners are adept at ensuring that the rules create a fair and simple environment. Even before you get to the CCMA, there are rules outlining the completion of documents, the service of documents and the filing of the dispute at the commission. The service of these documents needs to be proved in terms of the rules and there are various time limits that will be applicable so as to ensure that the system runs smoothly and efficiently.
Even if a rule has been breached, there are other rules enabling individuals to apply for condonation of that specific breach. For instance, most disputes should be referred to the CCMA within 30 days after the commission of the dispute, however, if an individual is late with that referral it can be condoned by bringing a specific application in terms of the paperwork that is supplied by the CCMA. The individual will have to describe the degree of lateness, the reasons for the lateness and the prospects of success.
The commission will also weigh up the prejudice to the other party and any other relevant factors that need to be taken into account.
The reality is that the structure in the system is set up to ensure that the unversed applicant (employee) will be able to access justice even if ignorant of the laws and the rules. The commissioners are obliged to consider all the aspects before granting or refusing condonation of the default. The personnel always try and ensure that the rules of natural justice are applicable in most circumstances.
As described in a previous article, the system is geared into a two-part process where, firstly, a mediation takes place between the employer and the employee to see if an actual dispute can be avoided and settled. The specific forms for conciliation and arbitration are outlined in these rules and there are explanations alongside each section describing to the individual how the form can be properly and adequately completed.
The adjudication bodies have set up help centres so as to ensure that people are able to access advice. My experience has been that the help centres are efficient and friendly, and staff are properly trained to ensure that the exercise of obtaining advice and completing the forms is painless. Unlike many other governmental departments, the CCMA ensures that the service given to the individual is world class.
They will ensure that proper explanations are given for each and every section in the forms. It is useful to seek this advice if there is any doubt whatsoever. The completion of a referral form for a dispute could be completely null and void if, for instance, an employee does not give the correct citation of the employer and if the dispute is not sufficiently detailed to enable the CCMA to determine whether it has jurisdiction over the dispute.
The various types of disputes can get confusing and all it takes is a simple phone call or a five-minute meeting to ensure that the management and structure of your dispute is properly described and is eased through the system within the time limits promised by the legislation.
The relief sought by the individual must also be properly described in terms of these rules and, again, it is worthwhile to understand what relief can be sought in terms of the specific circumstances of the actual referral.
Even something as simple as the date of dismissal can be confusing. For instance, a dispute may be referred to the CCMA within the 30 days of either the termination or the date on which the employee left service.
If a fixed-term contract is not renewed, the employee may refer a dispute on the date on which the employer offered less favourable employment conditions for renewal.
The reality is that knowledge and understanding are vital and are easily obtainable from the bargaining councils and the CCMA.