You at work, you’re dealing with customers and you’ve got suppliers to deal with.
Suddenly you receive a notification that one of your employees is taking you to the CCMA.
What do you do?
How do you prepare and defend yourself and your company at the CCMA?
A default award can be granted against you if you ignore the notification. This means that the commissioner of the CCMA can order up to 12 months of that employee salary against you and you’ll have to pay that amount or even was that commissioner can order a reinstatement award against you.
This means that you have to take the employee back to work and pay him his back pay, in other words, all the outstanding salary that would have been due to him during that period while he was waiting for his CCMA case. Therefore, do not ignore the CCMA notification, it has serious implications for your business.
How do you prepare for a CCMA case if you are an employer?
Firstly, determine the reason why the employee referred the case to the CCMA.
- Misconduct?
- Incapacity?
- Retrenchment?
The next step is: for you to prepare your evidence at the CCMA. The Labour Relations Act states that the onus is on the employer to start the process, so you must prepare. This means that you must start on the day of the hearing.
What kind of evidence should you prepare?
- In a misconduct case, you need:
The charge sheet,
The disciplinary hearing notes,
Witnesses,
Documents to show that the employee is guilty.
- If it is a retrenchment case:
A section 189 notice
The proof of consultations.
- If it is an incapacity case:
To show the different consultations that occurred with the employee.
In any case, be prepared to demonstrate that you have followed the process and that your dismissal is justified.
If you did not follow the procedure and you did not have fair reasons, try to look at out of court settlements.
Alternatively, you may attempt to resolve the dispute with the employee. You can look at giving the employee a certificate of service, a good referral and even compensation can be different options that you can put on the table with the employee.
There are two parts to the case, conciliation and arbitration:
Conciliation
Conciliation is a process where the parties attempt to reach an amicable resolution of the dispute. It usually involves only the Commissioner, the Employer and the Employee, no Attorneys.
During the conciliation, a settlement will be reached and the matter will be resolved. If the dispute remains unresolved, the matter proceeds to arbitration.
Arbitration
Arbitration is a formal hearing, where each party has an opportunity to present their case, call witnesses and cross-examine the other party’s witnesses.
At the end of the arbitration, there is a winner and a loser.
Except for being a bit more informal, arbitration is very similar to court proceedings.
In Conclusion
It is important to note that the principle of fairness usually dictates the amount of compensation awarded.
The higher the degree of unfairness, the higher the compensation will be.
Therefore, employers need to focus on trying to prove that an employee has been dismissed fairly, and the correct procedure was followed.
