Three questions arise from this topic:
- Does an employee need to ask permission or take leave to attend their CCMA matter?
- Must an employee attending a CCMA matter be remunerated for that day?
- Can an employer take disciplinary steps against an employee attending a CCMA case without permission or leave?
This is a controversial topic where various employers, employees, trade unions and Commissioners differ on the correct approach to follow.
When we look at the basic principles cemented into the South African Labour Law, it is clear from the Labour Relations Act and the South African Constitution that everyone has the right to fair labour practices, to be treated fairly and to not be unfairly dismissed.
This will create the opportunity for employees who feel they have been treated or dismissed unfairly to refer a case to the CCMA or any other tribunal with the necessary jurisdiction.
By denying employees the opportunity to refer matters to the CCMA, employers will be denying them their fundamental rights.
Employees will, however, still have to inform the employer, obtain permission, or apply for either annual leave or, if the same is not available, unpaid leave to attend to their CCMA matters.
The next question that needs to be answered is whether employees will receive remuneration while attending their CCMA matters.
The principle of “no work, no pay” is a part of our labour and common law. This principle indicates that an employee has an obligation to place their services at the employer’s disposal, and the employer has an obligation to remunerate the employee for such services.
Where an employee elects to not render any services to an employer without a valid reason, there is no obligation to remunerate the employee.
This principle becomes more challenging to navigate when the employee is not at work and therefore cannot render their services, but the reason for the employee’s non-attendance is beyond the employee’s control.
In the matter of Macsteel Service Centres SA Proprietary Limited v Numsa & Others (J483/20), the Labour Court judged on the issue of “no work, no pay”. Although this case more specifically refers to the COVID-19 pandemic, the principle can still be used in the questions discussed in this article. The court held that employees who “rendered no service, albeit to no fault of their own or due to circumstances outside their employer’s control, like the global COVID-19 pandemic or the national state of disaster, are not entitled to remuneration, and Macsteel could have implemented the principle of ‘no work no pay’.”
This then leads us to answer the question of remuneration as follows: Should an employee be absent from work to attend a CCMA matter, which will constitute a good reason but is also outside the control of the employer, the employer can implement the “no work, no pay”- principle.
The last question that needs to be answered is whether an employer may take disciplinary steps against an employee for attending a CCMA matter without permission or leave.
While both the employer and employee are notified of matters being set down at the CCMA, it is still the employee’s obligation to inform the employer of his attendance and to follow the necessary company policies to apply for annual or unpaid leave.
Proceeding with disciplinary steps should be done with caution, and each situation must be determined on its own merits, whether it would be fair to proceed with disciplinary action in the circumstances.
It should also be taken into consideration whether the employee is a party to the dispute or merely attending as a witness.
As all employees have the right to attend CCMA matters that they have referred or are parties to, it would be difficult to prove that they were absent from the workplace without good reason.
Should the employee merely be attending as a witness, with or without a subpoena, the employee will still need to comply with company procedures to attend the matter at the CCMA.
Thus, each case should be considered on its own merits before any disciplinary steps are taken.
Article by: Arlene Jacobs
Dispute Resolution Official – CEO Bloemfontein