An aggrieved husband once referred his dispute with his wife to the Commission for Conciliation, Mediation and Arbitration (CCMA), asking it to grant a divorce. The story, part of CCMA lore, says something about the reach of the employment tribunal into the national psyche.
The latest Tokiso Dispute Settlement review reveals interesting aspects of that psyche. The first striking figure in the review is the extent to which South Africans still lean on the country’s dispute resolution structures — the CCMA, bargaining council tribunals and private mediation bodies — that handle between 155 000 and 160 000 cases annually. That is a staggering 600 cases each working day.
“Our caseload is astronomical compared with international standards,” says Tanya Venter, chief executive of Tokiso, a private mediation service responsible for the annual review, which is based on the analysis of a random selection of 2000 cases.
What does this say about South Africa? That it is undergoing a neatly channelled class war? That it is a nation of chancers who can’t hold down a job, but which squeezes the system for extra cash when it can? That it has one of the worst, most exploitative management elites in the world?
Venter says: “We definitely have a problem with a high turnover of staff. One reason is the high level of dismissal. You have maybe 3% of your workforce being dismissed each year. Our sense is that it is very, very high.”
But why?
“I think there is an element of criminality in the workplace. If you look at the [CCMA’s] misconduct stats, you’ve got a third of your cases being about dishonesty. That’s pretty high. That reflects that there’s a problem in the workplace with dishonesty issues, as there is in our society. But I think there is a high level of unfair dismissal also,” says Venter.
Eighty-eight percent of all labour arbitrations in South Africa are over dismissal, of which two-thirds are about misconduct, according to the report. This points to an important shift at the CCMA — 60% of all cases arbitrated end up in favour of the employer. This has changed from previous years when the majority, or at least half, of cases were won by workers.
These figures throw up more questions. Is the CCMA becoming fairer to employers or are employers becoming fairer to their workers? The recent shift brings the CCMA in line with the experience at South African bargaining council tribunals, which find 60% in favour of employers. Internationally the split at labour tribunals is closer to 80 to 20 in favour of employers.
Is the South Africa system biased against employers, as many business owners would argue? The Tokiso review is careful not to accuse the CCMA of being unfair, but says in a footnote: “We reject the notion that there is an equal amount of ‘good and bad’ employers, or that a 50-50 outcome shows a lack of bias and an even-handedness in the CCMA.”
It argues that in an efficient system most cases would end in favour of employers, who are under business pressure to manage with the least amount of disruption and punishment from the CCMA.
But are employers afraid of CCMA punishment? One of the most surprising figures in the review is the huge increase in the number of employers who simply ignore CCMA orders. A total of 10 026 CCMA awards had to be “certified” in the year under review. In other words, employers ignored the findings against them, forcing the worker back to the CCMA to turn its award into an order of the court. The figure is up by 18% from the previous year and more than double that of the year before.
Venter dismisses the idea that the increase shows a crisis of legitimacy for the CCMA in the eyes of employers. It is rather due to increased assertiveness among workers, she says, coupled with overload of the country’s sheriffs, who are the ultimate enforcers of CCMA orders.
Another intriguing statistic in the review shows that a mere 3% of dismissal cases arbitrated are about poor performance by employees. The researchers say the number is “artificially low” because employers seem to find it difficult to deal with poor performers under the Labour Relations Act. They’d rather wait for an opportunity to charge the worker for misconduct.
Nerine Kahn, CCMA chief executive, said she was satisfied that the Tokiso report acknowledged that dispute resolution was working in South Africa, and that the CCMA had made progress over the last year. She said she would comment in detail on the report at a later stage.