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The Commission for Conciliation, Mediation and Arbitration (“CCMA”) and other bargaining councils registered with the CIPC was established for cost effective and efficient dispute resolution by parties to a labour / employment agreement.
The CCMA resolves disputes mainly through mediation / conciliation or Arbitration, which leads to enforceable written settlement agreements or Rulings by Arbitrators / Commissioners.
The Labour Relations Act, 1995 (“LRA”) read with various other pieces of legislation and the CCMA or Bargaining Council’s Rules, regulates the proceedings and conduct of the parties during the aforesaid procedings.
Various matters are also referred to the Labour Court for adjudication in certain circumstances, as outlined by the LRA.
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The Labour Court has jurisdiction to entertain various matters, as contained in the Labour Relations Act, 1995 (“LRA”).
The Labour Court also deals with certain urgent applications, such as Restraining Orders, but mainly concerns itself with Review applications originating from CCMA and other Bargaining Council Rulings.
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Disciplinary Hearings should be substantively and procedurally fair.
There are various factors that underpins substantive and procedural fairness, which should be understood by the employer and form of risk mitigation,
To ensure this it is advisable that a suitably qualified and independent chairperson be appointed to oversee proceedings of such a nature and that a risk profile be developed for this part of a business.
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(Please see the Disciplinary Hearing link)
Not only is it advisable to appoint an independent chairperson during a Disciplinary Enquiry, it is also advisable to appoint someone independent to conduct proper prosecution in these proceedings.
The aforesaid ensures segregation of duties and unbiased Rulings.
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Collective bargaining is the process of negotiation between employers and workers, aimed at reaching agreement on issues that affect them in the workplace.
The process of negotiations forms the central part of collective bargaining. A union enters negotiations with an employer in the hope of winning a collective agreement that favours its members. The two parties negotiate until they find a compromise that they both agree on. Behind the talking, there is a power struggle. The workers put whatever pressure they can on management to agree to their demands, and management uses its tactics to try and get the workers to agree to their offer. Sometimes there is an agreement, sometimes there is not. When no agreement is reached, it is called a dispute and the parties involved can then call on a third party to mediate or arbitrate.
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There are essentially three forms of dismissals in South Africa, namely:
dismissal for misconduct;
dismissal for incapacity; and
retrenchment.
It is important to understand the differences between the above and ensure that the correct procedures are followed, to avoid matters being referred to the CCMA or the Labour Court and becoming costly for all parties involved.