As from April 1, 2015 the governing body of the CCMA has decreed that there will be
- Amended CCMA Rules (48 pages); and
- New ‘Guidelines on Misconduct Arbitration’ (51 pages including a table of cases).
See Government Gazettes published on 17 March 2015. The Rules will be found in GG 38572: Regulation Gazette 10389: GNR 223 and the Guidelines in GG 38573: GNR 224. The earlier ‘Guidelines on Misconduct Arbitration’, published in GNR 34573 on 2 September 2011, have been repealed.
Once again the Guidelines, in para 60, correctly make it clear that the:
“Code of Good Practice does not contemplate a criminal justice model incorporating formal charge sheets, formal procedures for the leading and cross examination of witnesses, formal rules of evidence, legal representation and independent decision-making”.
Reference is made to Mutual Construction Co Tvl (Pty) Ltd v Ntombela at para 41 which reads:
“I do not think that, viewing the issue holistically, the third respondent did not receive a fair hearing. Of course, the procedure was not without some flaws but these to me were not so gross and of the nature as to justify the vitiation of the process. Granted, the charges as reflected in the notice of enquiry did not specify with any degree of certainty what it was that the third respondent was alleged to have done which supported the charges preferred against him. According to Binks the charges were explained to the third respondent at the disciplinary hearing. In any event, it did appear from the nature of his defence and evidence which he adduced that the third respondent fully understood the import of the charges against him and conducted his defence thereto reasonably well. This position was further better demonstrated during the arbitration proceedings, which was a hearing de novo of the dispute. Indeed, it could not be expected of a company official who was not legally trained to have drafted and formulated a charge sheet as, for example, was seen to be done in a court of law”.
And then they went and spoilt it all by using the word “guilty” in para 98 and “guilty or innocent of the misconduct” in para 130.4. There are also references to “charge” after having stressed that only “allegations“ are necessary. See paras 100 and 102. On a lighter note the word ‘charge’ in para 142 is correct as it refers to fees.
What is particularly interesting is para 144 which reads as follows:
Section 74(2)b of the [BCEA] gives the CCMA arbitrators the jurisdiction to determine, in conjunction with unfair dismissal disputes, claims for amounts that an employer owes an employee in terms of the [BCEA], provided that the claim has not prescribed. Those amounts include claims for unpaid salary or wages, overtime or leave pay.
Para 145 reads:
As a result, an arbitrator may exercise jurisdiction if the claim only emerges during an arbitration and has not been raised in the referral form. In such a case, the employer would be entitled to a postponement in order to respond to the claim. The fact that a compliance order has been issued or proceedings have been instituted in another forum, is not a bar to an arbitrator determining the issue. However, once an arbitrator has made a determination in respect of an amount owing in terms of the [BCEA], no compliance order may be issued or enforced and no other legal proceedings may be instituted in respect of the claim.
The real purpose of the amendment to the BCEA was to empower arbitrators and Labour court judges to achieve a balance between the interests of employers and employees in dismissal disputes. In other words if the reason for dismissal was not gross misconduct then management should have provided for notice of termination. If employers fail to do so they can now be ordered to pay an amount instead of reasonable notice. This must be so because the BCEA only provides for minimum periods of notice whereas the common law provides for reasonable notice.
Hopefully a new era is about to dawn where managers will start to provide for reasonable notice when dismissing, except where there is clear and convincing evidence of gross misconduct. This is not a punishment but a forfeiture of rights by the employee.