The South African workplace has become an increasingly fraught and antagonistic environment over the past five years, considering the increase in the number of cases taken to the Commission for Conciliation, Mediation and Arbitration (CCMA).
Figures in the latest annual Dispute Resolution Digest report indicate that worker complaints to the commission increased by a staggering 30 000 — from 123 472 annually five years ago to more than 150 000 a year for the past two years.
Disputes referred to bargaining council tribunals in various sectors almost doubled from just more than 20 000 a year to almost 40 000. Taken in the context of a shrinking pool of formally employed workers, it means the increases are even higher than the nominal values suggest.
Researchers from Tokiso Dispute Settlement, a private company that compiles the analysis, rejected the commission’s notion that the recession was behind the increase in disputes. “The caseload appears to have grown consistently since the founding of the CCMA. There is little or no relationship between the levels of case referral and the state of the economy as measured by gross domestic product growth,” the report states.
Tanya Venter, Tokiso chief executive and co-editor of the report, said it was clear that the Labour Relations Act had failed in one of its main intentions — to create a co-operative approach in the workplace. Workplace relations were “really bad in the 1980s”, she said. “The sadness is I don’t think it’s got better. I think there was an improvement in the mid- to late-1990s when the Labour Relations Act came into force, but I think it’s got steadily worse during the 2000s.”
Venter said, instead of developing the CCMA as an “informal, efficient and quick” dispute-resolution system that it was intended to be, both union officials and managers preferred to approach it as a mechanistic administrative procedure. Instead of strategising about better working conditions, productivity and co-operation, union officials and human resource managers “are sitting in hearings, which is by its nature adversarial and contributing to bad relationships”, she said.
“It’s like the whole system is catering towards adverserialism rather than towards co-operative governance in the workplace.”
Venter’s co-editor, labour law expert Andrew Levy, downplayed the significance of the increase, describing it as incremental. He saw more significance in the fact that the number of cases at South Africa’s labour tribunals had always been extraordinarily high. The United Kingdom, for example, has an economically active population of 28-million that yields about 240 000 labour disputes per year. South Africa’s total of close to 200 000 labour disputes emanate from a workforce of seven million.
The reasons, said Levy, were multiple. “Employees are very well aware of ‘what they believe their rights to be’ and unions will automatically, without any consideration about whether it is a meritorious case or not, always refer something to the CCMA.”
Levy said the commission was one of the best-known institutions in South Africa, also among those who do not belong to unions, and was widely used by employees who felt genuinely aggrieved, chancers trying to milk the system for extra cash and those who wanted to get back at their former employers. It does not help that the commission’s system is extremely accessible. South Africans can litigate over an employment issue “at the drop of a hat, with no risk of costs, and a large number of those referrals are vexatious”.
The research contains startling figures about the extent to which South African employers seem to have turned their back on the system. One in three of all CCMA hearings end in default awards; in other words, the employer simply did not pitch.
In no fewer than 11 848 cases last year, employers failed to comply with a monetary CCMA award. The report said this was an “overwhelming number” and the “primary challenge to our dispute resolution system”.
Under the rules, it is easy for a recalcitrant employer to push a dismissed employee to give up in despair. A complainant has to obtain a certificate of noncompliance from the commission, a writ of execution from the Labour Court and must pay the sheriff to attach the goods of the employer, if he can be found.
“It is a messy and protracted process that only the most persistent person can endure,” states the report. It called for the institution of an “employment clearance certificate” similar to the tax clearance certificate system to force employers to comply.
The CCMA declined to comment before studying the report.
South Africa’s work disputes in perspective
If every unhappy country is unhappy in its own way, what do the numbers from the Commission for Conciliation, Mediation and Arbitration (CCMA), South Africa’s premier labour dispute resolution tribunal, suggest?
- Are we too sensitive about our labour rights? Almost 200 000 disputes are lodged at labour tribunals every year out of a workforce of seven million, compared with the United Kingdom, which has 240 000 cases out of a workforce of 28-million.
- Are our shop assistants grumpy? The retail sector is the biggest source of CCMA disputes at 15% of all cases, followed by 14% from professional services, 12% from the security industry, 9% from construction and 4% from mining.
- Do we overpay lawyers and labour consultants? Appearing before the CCMA on your own or being assisted by a representative makes almost no difference. Of the findings at the CCMA, 33% go in favour of employees and 67% in favour of employers, whether or not the parties were represented. This ratio shifts slightly to 36%-64% if only the worker is represented. But, when only the employer is represented, the odds turn to 79% in favour of the employer — just enough, it seems, to keep many labour lawyers in business.
- Is the system hard on employers, or are they hard on the system? In the labour tribunals of developed countries employers won 80% of the disputes, said Tokiso Dispute Settlement chief executive Tanya Venter. In South Africa the figure is 50% if default awards — a full third of all cases — are included. Defaults occur when employers do not pitch for the hearing, indicating perhaps a crisis of legitimacy for the CCMA among employers, or a lack of consequences for nonÂcompliance. But why do only two-thirds of employers who do participate win their cases, as opposed to Europe’s 80%? Venter said they failed to learn from their mistakes.
- When employers get it wrong, they get it wholly wrong: about 64% of dismissals declared unfair by the CCMA are both procedurally and substantively unfair. It means an employer did not give the worker a fair chance to state his case and firing the worker was too harsh a punishment.
- We do not go gently: as can be expected in a country with 24% unemployment, getting fired is calamitous and precipitates a fight to the bitter end. Of all the CCMA’s cases, 80% are about dismissals, dwarfing the number of disputes over constructive dismissal, retrenchment, renewal of contract and incapacity. Labour law expert Andrew Levy estimates that two out of three dismissals are taken to the commission.
- Thieves and liars rule: accusations of dishonesty are behind most dismissal cases at the CCMA. Theft, fraud, dishonesty and unauthorised use of company property comprise more than one-third of all misconduct cases. Absenteeism is next at 14%, followed by negligence at 13% and insubordination at 11%. South Africa’s purported propensity for violence seeps in, too — one in 20 misconduct dismissals relate to assault.
- Are managers cutting corners? In a notoriously underskilled workforce, only 6% of CCMA disputes are over poor work performance. Are our managers really so good at monitoring and giving feedback that most trainees accept it when they are fired for not being up to the job?
Unlikely, said Levy. What probably lies behind the figures is the tendency of managers to avoid rigorous monitoring, measurement and feedback and to get rid of underperforming workers by looking for signs of misconduct.