Labour Court and the CCMA
We have often reported on how legal cases are dragged out, especially once a dispute reaches the Labour Court (LC).
It is not uncommon for an unfair dismissal to take four or five years to resolve."There are serious problems, especially at the LC," says Rudi Dicks, Cosatu's labour market coordinator at Nedlac. "There is a lack of resources at the LC.
There is just one registrar at the LC who can certify awards. Often there are conflicting judgments coming out of the LC."While the LRA sets strict time-frames which the CCMA has to abide by, there are no such limits on the LC.
For example there is no time-frame laid down for the LC to decide a review. Often it can take up to a year to get a decision on a review. Now Cosatu is taking up the issues at Nedlac.
The table that follows spells out the problems and the recommendations that labour is making to resolve them. Proposed solutions involve changing legislation or LC and/or CCMA rules.
Other proposals will require additional funding to implement eg the proposal to institute an electronic recording system at the CCMA.
Labour proposals will try to stop experiences like Ntlele's
On April 24 2002 Pascalis Ntlele was fired. Just more than five years later the legal process ended with his reinstatement. During that time "there was no money coming in. My wife left me, I lost respect from my children."
Current Concerns and Recommendations
CCMA required to attend at the Labour CourtThe Labour Court currently requires the CCMA to appear / enter a response in every matter in which it is cited as a respondent.
When the CCMA does not appear, the matter is referred back to the CCMA for a rehearing, regardless of the grounds for review. The CCMA has an approach to only enter an appearance in specific circumstances where the interests of the CCMA are raised in the matter.
The CCMA does not defend every matter where it is cited as a co-respondent. The current approach of the Labour Court results in an unnecessary duplication of work for the CCMA and a frustration on the part of parties as matters have to be reheard by the CCMA regardless of the merits of the review.
Labour Court Rules / LRA to be adjusted to ensure that matters are not referred back for rehearing unless first considered and reasons provided.
S143 Certification of AwardsThere are extensive delays in relation to arbitration awards once delivered to LC. (There appears to be only one registrar at the LC to certify awards.
Various procedures are imposed on parties and on the CCMA by the LC which are not recognised legally. LC raises queries on issues and on back-pay being awarded or calculated.)The delays and processes are utilised by certain employers to circumvent compliance with the LRA.
Develop an automated case management system Allocate more resources to the Labour Court to deal with s143 Allow CCMA calculated back-pay to be endorsed.
Adjust LRA /Labour Court rules to deal with s143 certifications and backlog (include a time limit for certification) Organised business and labour to investigate code of conduct in relation to CCMA and the Labour Court.
This code of conduct is intended to support a just, fair and speedy resolution to disputes, including the prevention of frivolous review applications
Time-frame for setting down matters on ReviewWhen a review is brought, the award is â€œinterruptedâ€. Often, the employer that brought the review does not proceed with it.
As there is no obligation for the matter to be scheduled by the LC, an unrepresented applicant will most likely not know the legal process and will probably simply give up. (CCMA research indicates 80% of reviews filed end up dormant in the LC.)
Adjust LRA /Labour Court rules to provide for a 6 month period in which the Court must schedule and set down the matter.
Time-frames for Delivery of JudgementsThe are no time frames in which a LC must decide a review. In many instances, judgments take up to a year.
Adjust LRA /Labour Court rules to provide that judgments must be handed down 30 days after the matter is concluded.
Sheriff Service Process and CostsOnce an award has been duly certified it has to be served on the party, before it can be enforced.
This process is often not completed in circumstances where the applicant is unemployed and has no source of income to fund the required security for costs.
Investigate the possibility of using the Dept of Labour Fund as security for costs. Alternatively, dispense with security for costs in relation to service of CCMA awards
Reinstatement Mandamus Where the employee is attempting to enforce a reinstatement award, the only way that the employee can do so is via a Mandamus application in the Labour Court. This is a costly and complex process, often out of the reach of employees.
Investigate the possibility of extending the Department of Labour provincial enforcement of awards function to include reinstatement awards.
Investigate the possibility of allocating financial resources to support an employee in enforcing a reinstatement Reconsider rules of court so that they are less legalistic and more accessible for non-legal parties.
Costs Awarded Against the CCMACosts awards are in many circumstances issued against â€œthe respondentsâ€.
As the CCMA is an automatic respondent in review matters, this inadvertently leads to a cost award against the CCMA.
It is submitted that while in certain circumstances, it may be proper to award costs against the CCMA as an institution, that awarding of costs against the respondents is often not properly considered and is inappropriate.
Labour Court judges to be capacitated and appraised of the concern, and to avoid this wording unless there is a specific intention to penalize the CCMA. Capacity building of Labour Court in conjunction with the Department of Labour
Records of CCMA ProceedingsThe Labour Court routinely refuses to accept handwritten records of CCMA proceedings, and often refers to taped records as inaudible.
The alternative for the CCMA is to transcribe records at great cost and time. While the CCMA acknowledges the need for a record, a more practical solution is sought.
CCMA to implement an electronic recording system in conjunction with the Department of Labour.
Contradictory JudgmentsContradictory judgments regarding the same issues of law are often given. This provides the CCMA commissioners and parties with inconsistent jurisprudence and a lack of certainty.
Formal relationship to be established for technical co-operation between the Labour Court and the CCMA. Capacity building of Labour Court in conjunction with the Department of Labour
No Reasons Provided for Setting Aside AwardsThere are currently judges who are setting aside CCMA awards on review, without providing reasons therefore.
As a result, no learnings are derived from the matter for the CCMA or the Commissioner concerned. Further, the parties are left with little insight as to the reasons for the decisions.
Rules to be amended, providing that all judgments to be supported by rulings.
Strategic and Technical Co-operation between CCMA and Labour Court
Initial meeting be held between social partners, CCMA, JP and Director General facilitated by Nedlac to establish a formal relationship, engage on the concerns, agree on the way forward with time-frames
Questions for discussion:* What problems have you experienced with resolving disputes?* Are these problems identified in these proposals?* What further problems and proposals to solve them do you have to add to these?