CCMA and the Increase Unemployment Rhetoric
Many believe the Commission for Conciliation, Mediation and Arbitration (CCMA) is an independent body free from influence and corruption. For many it is also a place where the unfairness of the workplace is a continued process and in a manner where responsibility and accountability is shifted to the employee. Sounds insane right?
Take for example a constructive dismissal dispute, this is in all fairness and also advised by many a career ending move on the part of the employee. How many of you have been told, don’t do it, you will lose? Well, you may ask why? My understanding and in hindsight now, the mere fact that the dispute made it to CCMA is indicative of an already ‘proven’ effectively defrauded employee. The commissioners certainly do make this very clear to the employee in the conciliation phase. Employee allowed no one to represent them, oh but the employer has all sorts of tricks. Let me put it in perspective for you: Employee innocent or not has no experience of any such processes. The suits that enter the conciliation room works for the company that the employee is in dispute with but the scared vulnerable employee knows nothing about them, who they are, what their names are, etc. Did I mention that they walk with boxes of files? Is this to intimidate the employee or is it to fool the commissioner, remember the onus to prove constructive dismissal case is on the employee who has one small file. Why then does the respondent walk in with this crippling amount of files. Any commissioner should know that this is an act right? No, commissioner asks frightened employee “Do you have a lawyer”. Employee believed this service was free.
The employer (pound ready) did with intent not settle dispute with employee because they did not go through all the trouble to ‘disprove’ employee’s allegation of racialism, victimisation, bullying tactics, etc First misnomer is that it is the ‘responsibility’ of the employee (already victimised) to prove this very wide and incredulously circumvent allegation. If you have represented anyone in such an instance or was faced with the same fate as proving your own constructive dismissal case you will know of its incredulity and circumvention especially when it comes to the facts of the case. The employer can and will derail the facts to turn on the employee and then challenge the character of the employee. Desperate measures seek desperate actions.
From the CCMA website:
The Commission for Conciliation, Mediation and Arbitration (CCMA) is a dispute resolution body established in terms of the Labour Relations Act, 66 of 1995 (LRA). It is an independent body, does not belong to and is not controlled by any political party, trade union or business.
- Services are free?
- Governing Body SUPREME policy making body…
- Commissioners appointed by Governing Body…
- Labour relations 96%, BCEA 2.6%, EE 1%, SDA Nil of which 27% is from business sector followed by domestic calls of 10%
Based on above information it is safe to assume that the broader Labour Relations disputes are in the vast majority of cases as this includes every possible wrongdoing on the part of the employer. We all know how real domestic exploitation is and it falls just below business sector disputes and still a huge jump in its positioning. Organised Labour surprisingly falls below that of domestic disputes at 10% reported.These numbers does not reverberate the reality we are faced with in South Africa. Why are the workforce voices so silent, you hear daily occurrences of organised labour dissatisfaction in the form of strikes, lockouts, road blockages, acts of violence, etc, and yet the percentages reported to CCMA falls short of business disputes by a broad margin.
Governing Body and Commissioners need to made aware of the silent voices of the workforce, one can assume that employers are not always in the wrong but when CCMA is faced with real claims of constructive dismissal cases be cognisant of the price employees pay in seeking recourse against these pound ready employers and the their staff who is made to feel even more afraid to speak up because the win was only based on large pockets vs no pockets. The losses in these cases to the working class is hard hitting and reverberates a message of doom if employees want to speak up against wrongdoing, there is no one who would willingly want to suffer the same fate as the employee who tried speaking out and standing up against the unfair treatment.
CCMA fails in its duty to ensure employment security
Strategic delays in hearing cases still questionable
Cases increase 2010–154279, 2015- 171854
The trend now in the public domain shows how high profile individuals are abused by public and private sector, how much more of ordinary employees who have no voice and goes undetected and why no one cares — Minister of Labour?
Matona decided to walk away because it was a fight he felt he could not win at the expense of his livelihood…
Matona made a good choice as far as some is concerned but he still is given a chance to speak out about the wrong and this is done on a very public platform. Can this help the exploitation case of the employees who already lost their livelihood? I don’t think it can.
“Matona‚ who was previously director-general of the departments of trade and industry and public enterprises‚ challenged his suspension both at the Labour Court and the Commission for Conciliation‚ Mediation and Arbitration‚ but eventually abandoned the case when it became apparent that the board was determined not to take him back.”
The public sector should at the very least fear the scrutiny, while the private sector enjoys complete autonomy. Politically this fight against the vulnerable is destructive and devious. One has to wonder what phenomenon does this public entity, who in its calling is to protect the workforce, fill. Whose agenda is followed, either corruptible public sector or autonomic private sector because it is definitely not the agent of the ever more vulnerable employee.
Another public institution who has a bigger responsibility in the protection of the trust of the public shamelessly abuses the Labour Relations Act (LRA) is in the news for all the wrong reasons. Is it because SARS has the power to sway the integrity of the LRA or its arrogance is so extreme, its blind to all the wrong instituted?
Lackay’s case is current and is also not voiceless. His most recent interview on eNCA is evident that his fighting back has merits, what boggles the mind is the audacity of the process with no fear of the consequences to the integrity of the workplace and CCMA proving its not independent. Will this case also disappear into the night? My guess is it will.
Allow me to go back to 2014 when another executive approached the same process due to alleged wrongdoing by his employer. This involved the private sector and has a slightly different ending to the demise of public sector labour disputes.
Golding was suspended and he challenged his suspension, I cannot say what happened during all of this but he is now in the employ of his initial employer at the time of the dispute but in a different holding company altogether. Did he win or did his employer win? Jury will remain out on this one. What win or loss can CCMA claim in this dispute?
My mentioning the executives facing a fight against all odds is only to illustrate the general accepted narrative that employees are treated fairly without fear or favour in all industries and all businesses, how can this narrative face any merit when the media wave right now is that of executives challenging this hopelessness. If only by comparison if ten executives are being treated unfairly who is the most suitable qualifying body to echo the hopeless fight ordinary employees face daily. Some has challenged the accepted narrative and has suffered enormous demise. The numbers and this affect on the workforce goes unnoticed.
In a perfect world, when an employee feels victimised and seeks recourse after due process followed within the company and finds solace and fairness in the independent body intended to protect the integrity of the workforce, continues to work and provide for his or her family the world has to be a better place to live in even if just for one family not going under for whimsical acts of bullies.
Instead the bullies continue to reign and fail in every aspect to protect the workforce, and I am not referring here to the executives who can sell a property or two to survive, I am referring here to the mother and father of a family needing to turn over every cent to make ends meet. These are the people that CCMA fails to protect.
Business and Labour together with policy makers can be sensitive to the increasing, devastating unemployment numbers and stop the circus run by corporate SA within the rings of the CCMA. Stop allowing the innocent employee to suffer because you enable the wrong to fester.
