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  1. #21
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    Default Re: What is your experience with the CCMA?

    Quote Originally Posted by XJ Junkie View Post
    He makes a determination on whether the error is a minor or serious one & how prejudicial it affects either party.



    Send the request immediately along with a good reason. In your instance I'd also recommend objecting to the con/arb process. Then only if it goes to arbitration will you have to consider paying for legal advice. Much cheaper.
    Will that not depend on the the of dispute - dispute of right vis-a-vis a dispute of interest? I am not sure what the position in SA is, but wiht our labour commissioner's office a dispute of right must be referred to arbitration. Conciliation takes place only if the parties wish to seek settlement. An arbitrator then attempts to conciliate, failing which arbitration commences.

    A dispute of interest is referred immediately for conciliation to a conciliator. Failing conciliation of the dispute - industrial action follow.

    Is this also the position in SA?

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    Default Re: What is your experience with the CCMA?

    Quote Originally Posted by Ricoffy View Post
    Will that not depend on the the of dispute - dispute of right vis-a-vis a dispute of interest? I am not sure what the position in SA is, but wiht our labour commissioner's office a dispute of right must be referred to arbitration. Conciliation takes place only if the parties wish to seek settlement. An arbitrator then attempts to conciliate, failing which arbitration commences.

    A dispute of interest is referred immediately for conciliation to a conciliator. Failing conciliation of the dispute - industrial action follow.

    Is this also the position in SA?
    A small correction above: An Arbitrator Arbitrates, not conciliates.

    The process in SA is that matters refereed first go to a conciliation phase. If no agreement is reached then the commissioner can grant the applicant with permission to apply for the matter to be arbitrated.

    But in SA they usually summon parties to a Con/Arb, where arbitration is immediate (same day) if conciliation fails.

  3. #23
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    Default Re: What is your experience with the CCMA?

    Nevermind - Just read section 195(5A) of the LRA.

  4. #24
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    Default Re: What is your experience with the CCMA?

    Quote Originally Posted by XJ Junkie View Post
    A small correction above: An Arbitrator Arbitrates, not conciliates.

    The process in SA is that matters refereed first go to a conciliation phase. If no agreement is reached then the commissioner can grant the applicant with permission to apply for the matter to be arbitrated.

    But in SA they usually summon parties to a Con/Arb, where arbitration is immediate (same day) if conciliation fails.
    Unfortunately not in namibia. An arbitrator is appointed by the labour commissioner in any dispute of right and such arbitrator assumes certain authority to conciliate. An arbitrator can conciliate in Nam, but only with disputes of right.

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    Default Re: What is your experience with the CCMA?

    Quote Originally Posted by Ricoffy View Post
    Unfortunately not in namibia. An arbitrator is appointed by the labour commissioner in any dispute of right and such arbitrator assumes certain authority to conciliate. An arbitrator can conciliate in Nam, but only with disputes of right.
    I prefer the Namibian system. Mainly because its more onerous on the applicant 8).

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    Default Re: What is your experience with the CCMA?

    This exact issue is currently a headache in Namibia - especially on how our courts interpret these authorities.

    See the article page 53 of the attached law journal.

    I was recently successful in the Labour Court on this particular issue in law.
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    Default Re: What is your experience with the CCMA?

    Quote Originally Posted by XJ Junkie View Post
    I prefer the Namibian system. Mainly because its more onerous on the applicant 8).
    Indeed.

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    Default Re: What is your experience with the CCMA?

    join the LWO - landbou werkgewers org. - they specialise in agri and any other type as well
    http://lwo.co.za/contact-us/

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  9. #29
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    Default Re: What is your experience with the CCMA?

    I had to go there once. I caught my employee stealing money and in the time that I was preparing his case he went to the CCMA saying all sorts of things like I was calling him names and that he was unfairly dismissed etc. I went there and there were 5 of them and only me. So I told them that I caught him stealing and that I had proof. I had to leave the room for about 10 minutes and after that they asked me what I wanted to make the whole thing right? I told them that he must sell the car that he bought from the money that he stole from me. He stole +- R26000-00. Because he denied everything they asked me the way forward. I told him that he must come back to work so I can have a hearing so that I can fire him the right way.

    The little piece of [email protected]#[email protected]# never came back to work though!
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  10. #30
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    Default Re: What is your experience with the CCMA?

    Sign the settlement and move on.

    If this keeps on going back to court it will just cost you more time and money.
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  12. #31
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    Default Re: What is your experience with the CCMA?

    We have a case of an employee who claims he was unfairly verbally dismissed.

    In the heat of a work related arguement he said he is leaving and that he will leave his company car and laptop and walk out immediately.

    The next day we received his CCMA application form where he claims he was verbally dismissed


    Now, there is no proof that he was or was not verbally dismissed. Does he have any case to present at CCMA seeing that there is no proof and only a he said she said argument?

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    Default Re: What is your experience with the CCMA?

    Quote Originally Posted by Kariba View Post
    We have a case of an employee who claims he was unfairly verbally dismissed.

    In the heat of a work related arguement he said he is leaving and that he will leave his company car and laptop and walk out immediately.

    The next day we received his CCMA application form where he claims he was verbally dismissed


    Now, there is no proof that he was or was not verbally dismissed. Does he have any case to present at CCMA seeing that there is no proof and only a he said she said argument?
    Kariba,

    Be careful of construing the employee's actions as a lawful resignation.

    Given the information it could well be that the employee alleges constructive dismissal.

    Simply put, constructive dismissal is defined as "a resignation because the work environment has become intolerable for the employee as a result of conduct on the part of the employer". This can occur in both a positive act or in the negative, an omission on the part of the employer.

    Thus, on the one hand you can have a situation where an employer acts positively to make the work environment intolerable (for instance continued discrimination towards the employee) or on the other hand fails to take adequate action (for instance where an employee complains to the employer about sexual harassments in the workplace and the employer does nothing).

    What you need to understand about constructive dismissal is that it is different to an ordinary dismissal: in an ordinary dismissal an employer must show (prove) that the dismissal was both procedurally and substantively fair, while with constructive dismissal the employee carries the onus to prove constructive dismissal, not the employer.

    How does the employee prove constructive dismissal? By proving three things (in sequence):

    1) The employment contract must have been terminated by the employee, not the employer;

    2) The reason for termination of the contract must be that continued employment has become intolerable for the employee;

    3) The third is that it must have been the employee's employer who had made continued employment intolerable.

    If the employee is unable to prove any one of the three requirements, his termination will be seen as a resignation.

    In all, the terms constructive dismissal if often overused by disgruntled employees in an attempt to circumvent certain dismissal, for instance where an employee has been caught stealing, he overreacts and resigns immediately not to go through the ordinary disciplinary channels.

    Rest assured, if this instance is indeed related to constructive dismissal, it is very difficult to prove and most times employees fail to prove all three elements.

    I have attached some case law (which is an easy read) and will shed some more light on how our law approaches constructive dismissal. Have a good look at paragraphs 11 to 14.

    Good luck mate.
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  15. #33
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    Default Re: What is your experience with the CCMA?

    Quote Originally Posted by jelo View Post
    Sign the settlement and move on.

    If this keeps on going back to court it will just cost you more time and money.
    That's what i do.
    I sign.
    I pay the one months salary and i walk away.
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  17. #34
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    Default Re: What is your experience with the CCMA?

    Quote Originally Posted by imgreg View Post
    That's what i do.
    I sign.
    I pay the one months salary and i walk away.
    Yep.
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  18. #35
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    Default Re: What is your experience with the CCMA?

    Quote Originally Posted by imgreg View Post
    That's what i do.
    I sign.
    I pay the one months salary and i walk away.
    This is usually the way most employers tend to deal with menial labour disputes and there is nothing wrong with that.

    The problem comes in for larger employers where the notion of settling and paying easily can become a stigma (which is difficult to shrug off).

    The past 18 months I have noticed employers more willing to take a labour dispute on than settling.
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  20. #36
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    Default Re: What is your experience with the CCMA?

    Thank you for your advice Willem, in this instance the employee is not claiming constructive dismissal, and cannot prove any of the 3 points you noted.

    His only stance is that he was verbally unfairly dismissed and has no proof at all of a verbal dismissal.

    We have told him that as he has left the company on his own accord we are waiting on his resignation letter and until such time he remains contractually employed by our company and must report for work as nornal.

    We will 1st try and negotiate a fair settlement, but should we not find a middle ground and his expectations are not reasonable we will continue with CCMA proceedings. I just want to understand what leg he has to stand on if his only contention is that he was verbally dismissed yet has no proof at all.

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    Default Re: What is your experience with the CCMA?

    I have been on both sides of the fence.

    I have had individual matters with employees as well as being referred when seeking retrenchments. I have not yet lost a case in the CCMA, there must be well over 20 of them and 4 major retrenchments.

    I am unsure where the opinion that the CCMA favours the employee comes from. Many associates who run businesses have lost cases in the CCMA for a couple of reasons; they simply don't understand what constitutes constructive dismissal, they don't have procedural processes and records of these processes and end up woefully unprepared. The fact that the employee may well be guilty is of no value if you as a business fail to follow due process. The commissioner works to the LRA and does not compensate for a businesses HR weaknesses.

    You cannot approach the labour court before attempting to mediate in the CCMA. This I know first hand.

    When we speak so glibly of seeking restitution in the labour be mindful not so much of the time but the costs. I was subject to a Constructive Dismissal; the court found in favour of me and awarded 12 months salary with costs. The process this far has cost R 210k. The employer then appealed and responding to the appeal cost a further R 70k. The employer has now appealed to the Labour Appeals Court, not to sure what this will cost me. The reason for their appeals is that they have been in business rescue and are soon to liquidate, so there is a very good chance that apart from losing my job I stand to lose a further R 270k.

    When the court awards costs it is not your full lawyers costs but a fraction of that. Much like being contracted out in a medial aid, your lawyers charges will always exceed the rate of the state. No only that you need to get a special person to go through all the costs, to tabulate these against the standard charges to work out the final bill.

    And then finally you then have to fight them to make the payment.

    Last month marks 3 years of court action and all I have done is paid without getting cent in return.

    So the advice to take what is offered is for the most part a matter of discretion being the better part of valour.

    Has the employer offered me 6 months there would have been a win win.

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  23. #38
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    Default Re: What is your experience with the CCMA?

    Quote Originally Posted by Kariba View Post
    Thank you for your advice Willem, in this instance the employee is not claiming constructive dismissal, and cannot prove any of the 3 points you noted.

    His only stance is that he was verbally unfairly dismissed and has no proof at all of a verbal dismissal.

    We have told him that as he has left the company on his own accord we are waiting on his resignation letter and until such time he remains contractually employed by our company and must report for work as nornal.

    We will 1st try and negotiate a fair settlement, but should we not find a middle ground and his expectations are not reasonable we will continue with CCMA proceedings. I just want to understand what leg he has to stand on if his only contention is that he was verbally dismissed yet has no proof at all.
    To me, he is claiming constructive dismissal save for actually using the specific words?

    But you appear to have reacted in the correct manner so far. What would your reaction be if the commissioner told him to stop being a bf and go back to his job, and he then did so?
    Last edited by Ian.McM; 2021/09/19 at 04:25 PM.

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  24. #39
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    Default Re: What is your experience with the CCMA?

    Quote Originally Posted by Kariba View Post
    Thank you for your advice Willem, in this instance the employee is not claiming constructive dismissal, and cannot prove any of the 3 points you noted.

    His only stance is that he was verbally unfairly dismissed and has no proof at all of a verbal dismissal.

    We have told him that as he has left the company on his own accord we are waiting on his resignation letter and until such time he remains contractually employed by our company and must report for work as nornal.

    We will 1st try and negotiate a fair settlement, but should we not find a middle ground and his expectations are not reasonable we will continue with CCMA proceedings. I just want to understand what leg he has to stand on if his only contention is that he was verbally dismissed yet has no proof at all.
    Kariba, just take note that although the BCEA requires an employee to resign in writing, it does not take away from the common law position that a verbal resignation is just as lawful as a written resignation. To quote Dr. Grogan (by far the most authoritative on labour law in SA):

    "Employees are considered to have given notice of their intention to resign if they unambiguously inform their employers that they will terminate the contract on a certain date. Notice of intention to resign is a unilateral act which, once given, cannot be revoked without the consent of the other party. Although the Basic Conditions of Employment Act requires such notice to be in writing, it does not in my view follow that a verbal notice of intention to resign has lost its common-law significance. However, in order to be binding, the notice of intention to resign must be clear, unambiguous, and unconditional".


    Make sure the resignation conforms to this^

    I still think you are being confronted with constructive dismissal and if that is the case - please keep me updated when you can.

    Seeing as your first option is to seek amicable settlement, I would propose you offer no monetary settlement, but that he returns to his employment duties forthwith. Obviously that is dependent on the fact if you still see a workable relationship with him. If not, I would be very hesitant to offer anything.
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  26. #40
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    Default Re: What is your experience with the CCMA?

    Quote Originally Posted by MANDREAS View Post
    Kariba, just take note that although the BCEA requires an employee to resign in writing, it does not take away from the common law position that a verbal resignation is just as lawful as a written resignation. To quote Dr. Grogan (by far the most authoritative on labour law in SA):

    "Employees are considered to have given notice of their intention to resign if they unambiguously inform their employers that they will terminate the contract on a certain date. Notice of intention to resign is a unilateral act which, once given, cannot be revoked without the consent of the other party. Although the Basic Conditions of Employment Act requires such notice to be in writing, it does not in my view follow that a verbal notice of intention to resign has lost its common-law significance. However, in order to be binding, the notice of intention to resign must be clear, unambiguous, and unconditional".


    Make sure the resignation conforms to this^

    I still think you are being confronted with constructive dismissal and if that is the case - please keep me updated when you can.

    Seeing as your first option is to seek amicable settlement, I would propose you offer no monetary settlement, but that he returns to his employment duties forthwith. Obviously that is dependent on the fact if you still see a workable relationship with him. If not, I would be very hesitant to offer anything.
    New twist, we sent him an email on Friday stating that he decided to leave the company and therefore should either send us his letter of resignation, or he should report back to work on Monday at 7.30.

    We received an email from him today stating that he will return to work tomorrow at 7.30 and will lodge a formal grievance against his manager.

    So, how best to take this forward. We do not want him to work for us any longer, the relationship has become completely toxic and there is no trust or respect left from our side.

    How best to terminate his contract without any further dramas? Negotiate a settlement or dismiss him based on sufficient proof of various forms of misconduct we have.

    I would think the first option to be best and offer him 1 month pay.

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