Creative Solutions to Labour Disputes
In addition to Labour Court representation, specialist labour attorneys with an in-depth knowledge of labour law, also provide guidance and valuable advice to employers faced with labour disputes.
The Labour Relations Act, 66 of 1995 was enacted to provide for simple procedures for the resolution of labour disputes through statutory conciliation, mediation and arbitration, for which purpose the Commission for Conciliation, Mediation and Arbitration (CCMA) was established. These simple procedures usually exclude the right to legal representation (especially in the CCMA), because the process is not meant to be legalised.
Since the parties represent themselves, an attorney or labour consultant is, strictly speaking, not necessary to the proceedings. However, this does not preclude the need for expert legal advice. Proceedings relating to labour disputes still have to adhere to certain requirements and different time limits are applicable to notices sent to parties.
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The Dispute Resolution Process
The primary purpose of referring a dispute to the CCMA is to resolve it.
The statutory dispute resolution process requires that all disputes first be referred to the CCMA or a bargaining council for conciliation. Only after a failed attempt at conciliation or the expiry of the prescribed time limits for conciliation, may the parties go to the next level of dispute resolution, i.e. the Labour Court. Whereas the CCMA is usually the forum in case of relatively uncomplicated individual disputes, more complicated disputes are referred to the Labour Court. Different types of disputes have different time limits in which the employer must give the accused notice of the proceedings. A labour attorney can send these notices within the specified times, whilst ensuring that the notices comply to labour law specifications.
The three main categories of labour disputes are:
• Disputes which are arbitrable and have to be adjudicated by the CCMA;
• Disputes which are justiciable and have to be adjudicated by the Labour Court;
• Disputes which have to be resolved by the exercise of economic power, meaning the employees can either organise a strike or lock-out in support of their demands.
CCMA and Labour Court representation
The process before both the CCMA and the Labour Court include conciliation and arbitration, and dispute resolution. No party may be legally represented during conciliation, as it makes the process expensive and can be perceived to have the effect of complicating a would-be straightforward process. A party must therefore appear in person or be represented by a trade union or employers organisation. During arbitration, the parties may be legally represented in certain cases and then, only if the commissioner and all the parties to the dispute come to the conclusion that it would be unreasonable if a party is not legally represented in the circumstances. A party has no absolute right to be legally represented in labour disputes and need to convince the commissioner and other parties that he should have legal representation. A labour attorney will be able to advise an employer, ahead of time, as to which factors to focus on to persuade the commissioner and other parties of this.
Con-arb notice – To help reduce the overload of cases being brought to the CCMA, the process is expedited by “con-arb” when arbitration takes place as soon as conciliation fails. This has caught many employers by surprise as the con-arb notice allows for only about two weeks before arbitration takes place. If the dispute has reached this stage, it would be sensible to consult a labour attorney who could provide valuable input regarding which factors to focus on in the arbitration part of the “con-arb”.
Chairing of disciplinary hearings
The chairperson runs the disciplinary hearing and asks all the questions. Neither party is allowed legal representation during the proceedings, but parties are not prohibited from obtaining legal advice form a labour attorney or labour consultant beforehand. Both parties must give their accounts of the dispute and are allowed to have witnesses to corroborate their versions. A labour attorney can advise an employer on which points of his or her version to focus on and which witnesses to call. Both parties have to give closing arguments and a labour attorney can assist an employer with this. The chairperson makes a finding based on the accounts of the parties and their witnesses and takes certain mitigating and aggravating circumstances into account. The employer needs to know what these circumstances are in order to relay it to the chairperson and a labour attorney will be able to explain to the employer how to go about it.
FREE DOWNLOAD: Download the Step-by-Step Guide to assist a chairperson at a Disciplinary Enquiry.
Disciplinary policy implementation
The Code of Good Practice – Dismissals, stipulates that employers should have disciplinary policies in place. These rules should be reasonable, lawful and fair in terms of circumstances and the employer’s operational requirements. An employer does not need the permission of his employees or trade unions to implement such policies. A labour attorney can assist employers in the drafting and implementation of a disciplinary policy to ensure that the policy is reasonable and legal. Such a policy will rarely not be enforced by the CCMA and if properly implemented, will substantially improve an employer’s position in labour disputes.
Employment contracts containing restraint of trade and confidentiality clauses
Absence of a written contract of employment is not only a criminal offence but could also severely compromise an employer’s position in a labour dispute.
Employment contracts may contain a restraint of trade clause and / or confidentiality clause. There are, essentially, two components to the restraint of trade clause: the first part restrains an employee from doing certain activities or types of work and the second part contains the time period and geographical area where and during which the restraint will be applicable. A confidentiality clause restricts an employee from sharing certain information or trade secrets regarding the employer even after the employee is no longer employed by the employer. These clauses usually only become relevant when an employment contract is terminated. It is advisable that a labour attorney with a sound knowledge of contract law draw up these clauses to ensure that it could be proven – should a dispute ever arise – that the employer has a protect-able proprietary interest in confidential information and that the restraint on the employee is reasonable and enforceable.
Legal matters which require legal expertise
Labour laws govern nearly every aspect of the employer-employee relationship and an employer should always opt to get legal advice, not only in labour disputes but also in the drafting of employment contracts, to protect itself. Forums such as the CCMA provide for simple and cheap dispute resolution, but there remain certain requirements which have to be fulfilled to ensure a successful outcome for the employer. Labour attorneys are equipped with all the knowledge of labour laws and can recommend a certain modus operandi to the employer during these processes and advise the employer on what to expect.
~ Natasha van Greuning (LLB)
Employers should not be blind to the fact that labour disputes and other labour problems, despite the apparent simplicity thereof, are legal matters which require legal advice and an employer should, therefore, not hesitate to acquire the services of a labour attorney in such matters.
A Handy Checklist for compliance with Labour Legislation. A Descriptive DIY audit for employers.
Bargaining Council and CCMA cases are often lost by employers merely for not following the correct disciplinary procedures. Even though the reasons for the dismissal of an employee may have been valid, it is likely to be deemed an unfair dismissal.