It is very clear to me that wearing red from head to toe is not nearly enough to service members when it comes to hearings, inquiries and arbitrations.
There is a potential to achieve gains for members by avoiding pitfalls in cases involving them, while they can suffer serious losses when the pitfalls are ignored.
I came to this conclusion after interviewing one of Numsa’s legal officers, Norma Craven. Passion for her job was easily detectable in the sparkle in her eyes as she explained the issues surrounding cases and hearings.
Like a talking library, she moved from one point to another, giving an understandable version of labour law and its principles.
“Labour law is not rocket science,” she explained! As if she was reading my mind, she went ahead and gave an understandable version of labour law.
Below is a list of principles to observe when dealing with cases.
• Denial is not a defence. If you simply deny something it does not carry much weight, since that is expected.
• Do not raise non-issues and waste valuable time. Deal with the substance of the case.
• As a layman, do not try to present expert evidence. For example, don’t lead medical evidence without a medical practitioner! An expert should be called in all instances where expert evidence is led.
• Never underestimate the witnesses in the other camp, and don’t only rely on one witness – particularly the accused ¬– when the employer has more.
• Take time to assess the case: it may not be enough to claim that “this is all happening because he is a shopsteward’. There is no need for self-created blind spots
• Ask for the chairperson to recues him/ herself if need be, rather than staging walk-outs.
This will allow you to detect unfair procedural issues and substantive defects. That will also give wings to the case if you appeal to the next level.
• Present your case and remember that if you fail to rebut the employer’s evidence, it is the same as if it has not been challenged.
• Put the issue to the employer, forcing him or her to respond. For example: “I put it to you that Mr Mudau was on holiday in Durban when the burglary he is accused of happened in Limpopo. What do you say to that?”
• Even though you have to represent the member, it might not be a good idea to have absolute belief in what he or she says in the preparatory stages of the case.
It might be important to ask further questions and be clear about what the case entails and what the member’s role is.
• Arbitration is a “de novo” hearing, meaning that you start from the beginning of the case all over again. So whatever you did not bring into the case at the factory level can be introduced at this stage.
It is very much important to prepare the case and the witnesses. Most, if not all, cases are lost and won in the preparation phase. Stunts and gimmicks are not helpful ¬– it is no use singing a struggle song instead of presenting a member’s case.
I am converted – It is true that labour law is not rocket science. I can’t wait to be a disciple, and that wish is certainly reachable.
As we said goodbye, Norma said: “You are always welcome to come around for more information.” Norma, that’s on record – and we will be there for more!