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24 Feb 2012 00:00
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.
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?
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.
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