Unfairly dismissing the CCMA

In almost a third of all cases in South Africa’s labour tribunal system, the employer does not pitch up. The staggering figure was released this week in the fourth annual Tokiso review of South Africa’s labour dispute resolution system.

The survey was conducted by the largest private labour mediation service in the country, Tokiso Dispute Settlement. It found that default judgements issued against employers shot up to 32% of all judgements issued by the Commission for Conciliation, Mediation and Arbitration (CCMA), bargaining council tribunals and private mediation services.

This is up from an average of 22% over the past three years, says Tokiso chief executive Tanya Venter.

The researchers are unsure of the exact cause of the increase, but describe the trend as “disturbing” and call for “an urgent — intervention, be it legislative or structural, to address this disregard of the labour laws”.

The review ponders: “Perhaps this is a consequence of the general disdain for acquiescence in our society as a whole, but certainly it is related to the difficulty of enforcement.”

But that doesn’t explain the increase. Venter reckons the main reason is that employers learned that by ignoring the system, chances are that a complaint will go away. Getting a difficult employer to comply is daunting for a worker.

First, the employee lays a complaint at the CCMA. The employer doesn’t pitch up and the tribunal orders the employer to pay the worker compensation equal to six months’ salary, for example.

If the employer doesn’t pay, the worker has to submit a “Section 143 application” to the director of the CCMA so that the award can be certified as an order of the court.

This involves compiling affidavits, among other things. If the employer still refuses to pay, the worker has to approach the Labour Court for a writ of execution against the employer.

There is a “huge backlog” at the Labour Court and a worker can wait for six months to get the writ. When he takes it to the sheriff, he finds that he has to pay a R1 000 deposit before the sheriff attaches the employer’s goods. By this time, many workers have given up.

“There’s a huge, huge problem with enforcement of awards,” says Venter.

It is ironic that employers seem to be turning their backs on the system at the time improvements have been taking place in the CCMA, which handles 75% of all labour disputes in South Africa.

The average dispute is dealt with within two months, an improvement from previous years when it used to take four to six months.

Also, to the advantage of employers, “the tide has turned against the over-proceduralism that was evident a couple of years ago”, says the review.

According to South African labour law principles, an employer not only needs a good reason to fire an employee, but it also needs to be procedurally fair.

Previously this led to an over­emphasis on procedural fairness by some commissioners who declared a dismissal unfair on a small technicality, despite gross misconduct by the employee.

Tokiso found that only 4% of dismissal cases were awarded against employers for procedural unfairness. This is down from about 6%, says Venter.

According to the review, there is increasing evidence that the labour law system is flexible, contrary to criticism that it places a big burden on employers, especially small business owners.

But the figures – and employers’ conduct – also need to be evaluated against extraordinary conditions that the review highlights: a whopping 160 000 disputes are referred to the system every year – one every working minute. It is quite possibly the highest incidence in the world.

In the United Kingdom the labour tribunal deals with a case load of 105 000 a year from a labour force of 28 million. South Africa has a workforce of 17 million.

Furthermore, internationally about 80% of labour tribunal cases find in favour of employers, compared with 67% (without counting default awards) in South Africa.

Could it be that the misuse of the system by disgruntled workers and a perceived bias against employers has broken down the legitimacy of the CCMA in the eyes of employers? And that this, at least in part, is causing more employers to dismiss the CCMA, unfairly or not?

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