Rather like a traffic fine — if you ignore it chances are that you’ll get away with it — employers are increasingly ignoring the orders of the Commission for Conciliation, Mediation and Arbitration (CCMA), the country’s labour tribunal.
CCMA chief executive Nerine Kahn believes that the huge increase in CCMA awards being ignored by employers is because of a realisation among employers that they can drag out the process for such a long time that they “negotiate a discount” with their former employees in return for a quick settlement. Many workers also simply give up in despair, letting their former employers off the hook entirely.
Last year the CCMA had to “certify” 10 026 awards, usually compensation for unfair dismissal, turning them into orders of the court because employers failed to implement them. This was almost a three-fold increase in two years. Kahn says that if the CCMA orders an employer to pay a sacked worker six months’ salary, for example, he says to the employee, “Well, I’m going to drag you through the court. You’re going to have to get certification [of the award], which is going to take you six months. I’ll pay you four months’ salary now and be finished.”
Inefficiencies in the Labour Court, which oversees the CCMA and has to process all award certifications, as well as a deposit that a worker has to pay before a sheriff can execute an order, give recalcitrant employers the space to squeeze a “discount” from their former employees, says Kahn.
The fact that not every province has a seat of the Labour Court makes it even more difficult for workers to pursue justice beyond the CCMA. “So if you’re in Kimberley or Klerksdorp, you’ve got to come to Jo’burg. If you’re an indigent farm worker, how are you going to do that?” says Kahn.
Part of the solution, she says, is sorting out inefficiencies in the Labour Court system, which in turn is hampered by the controversies around the Superior Courts Bill currently stuck in Parliament. Other possible improvements could come in the form of a special agency, separate from the sheriff, to execute labour orders.
It could be argued that employers are simply giving as good as they get at the CCMA. Employees use the threat of dragging the employer to the CCMA to negotiate a better deal when they are sacked, fairly or not. “There is no question that the existing system allows for abuse by both parties and the frivolous use of the CCMA … continues to remain an ongoing problem,” according to the latest Tokiso Review of dispute resolution in South Africa.
Many employers feel the CCMA is heavily biased against them, while Kahn, of course, is adamant that the CCMA is always fair when adjudicating disputes between workers and employers.
An objective measure of the CCMA’s fairness seems hard to establish if the CCMA and Tokiso, a private dispute resolution and research organisation, can’t even agree on how many cases are found in favour of the employers, let alone the fairness of the awards.
Kahn says the CCMA figures show 58% of all cases go in favour of employees. The Tokiso Review, which draws on a sample of 2 000 cases, shows the opposite — that 60% of cases are won by employers. Kahn says the fact that Tokiso’s research excludes farm workers and domestic workers might have a lot to do with the discrepancy.
Whatever the true figure, both the CCMA and Tokiso might well record a slip in the number of cases won by employers in the coming year as a result of a recent Constitutional Court decision that CCMA arbitrators must decide their cases on the basis of absolute fairness, overturning a Supreme Court of Appeals decision that an arbitrator must defer to an employer’s decision.
But there are changes in favour of employers at the CCMA, one of which is the battle against “proceduralism”. This is the tendency of arbitrators to rule in favour of employees because of minor infringements of disciplinary procedures, no matter how strong the substance of the case was against the employee.
The Tokiso Review shows a 5% drop in the number of cases found in favour of employees based on some element of procedural unfairness.
Kahn says that in the past the CCMA placed too much emphasis on the correct procedure when an employer dismissed a worker. She has embarked on a “very active campaign” within the CCMA to change the approach of commissioners and says a further drop in cases awarded on the basis of procedural correctness can be expected. “Procedure is very important to have fairness, but the reason for your dismissal is much more important.”
Kahn says CCMA management is not entitled to tell commissioners how to rule their cases but, with an intensive training programme for commissioners, she has established a “perusal team” in the CCMA to read awards, identify problems and provide feedback to commissioners.