A guideline for proper preparation of CCMA and Bargaining Council matters.
The old saying goes, “by failing to prepare; you are preparing to fail”. This is why Employers must prepare timeously for their CCMA or Bargaining Council matters to successfully mediate or arbitrate a case to the benefit or success of the Employer.
How does an Employer ensure they are properly and timeously prepared for a matter? The nature of a dispute will ultimately dictate precisely what needs to be prepared. In this article, we will give a general guide on what Employers need to do and consider in preparation for matters in general.
From the outset of each matter, an Employer must ask what the nature of the dispute is. In other words, one must determine where the bone of contention lies to decide what evidence needs to be led and which witnesses must testify to support the Employer’s case.
Evidence can come in many forms, such as photos, verbal, audio, video recordings and documents. The Employer must ensure that all the evidence is readily available at the hearing. It is also recommended that evidence such as emails and messages are printed.
For instance, in a dismissal dispute, an Employer must prove the dismissal was fair, both procedurally and substantively. In proving procedural fairness, one must provide evidence such as the disciplinary notice, the hearing minutes and the outcome or recommendation by the chairperson. For substantive fairness, the Employer would have to provide a signed contract of employment and a disciplinary code to prove there existed a rule in the employment space and that the rule was known and contravened by the Employee, despite their knowledge of the repercussions.
Conversely, in a dispute relating to Section 73A of the Basic Conditions of Employment Act (BCEA), which deals with alleged statutory monies owed to the Employee by the Employer, the Employer will need to provide evidence such as payslips, proof of payments and statements in proving money was paid or is not owing. These are merely examples of two types of possible disputes and the trail of thought to take in deciding on which evidence to present, as each case will differ depending on the nature of the dispute and the facts.
Employers must ensure that the witnesses they intend to call at the Arbitration hearing can testify on the day. The Employer (or representative) will have a chance to ask the witness questions that will further its case, but the opposition (Employee) will also get to question the witness. If there is a need for a particular witness to testify, but they refuse to attend, the Employer may have them subpoenaed to testify (an official order that they have to attend).
The subpoena must be filed at least two (2) weeks (14 days) before the hearing date and in accordance with the CCMA rules. The person applying for the subpoena will need to complete and submit an LRA Form 7.16, together with the statement in terms of Rule 37 of the CCMA, setting out the reasons for the subpoena. The subpoena does not necessarily have to be served via the Sheriff. It may be served and delivered by hand, registered mail etc., at least seven (7) days before the hearing date.
In conclusion, the Employer must be prepared to argue on the issues in dispute. All evidence, whether documentary, video, or witness testimony, supporting the Employer’s case must be available at the CCMA for the Commissioner to consider.
Article By: Jason van der Merwe
Dispute Resolution Official – CEO East London