THE COST OF IGNORING CCMA OR BARGAINING COUNCIL SET DOWN NOTICES
By Stephen Khola, National Labour Relations and Human Resources Director, ECA(SA) Head Office
A few years ago, I wrote an article warning of the consequences of ignoring set down notices from the CCMA or Bargaining Council – and it appears that that article is still as relevant today as it was then. Of late, I have been inundated with a number of rescission applications where I have been tasked with persuading the CCMA to set aside an award it had issued because an employer had decided that it was not that important to attend a scheduled CCMA arbitration hearing.
It is important to note that after an employee has referred a dispute to the CCMA or Bargaining Council concerning an alleged unfair dismissal, the CCMA or Bargaining Council will usually serve a notice of set down on both the employee (applicant) and the employer (respondent). This notice is usually sent by registered post to the parties and such proof of service is retained by the Case Management Division of the CCMA or Bargaining Council as proof that it had notified the parties.
The notice of set down contains details such as the names of the parties to the dispute, the nature of the dispute to be heard at that particular forum, and the date, time and venue where the dispute is to be heard. The notice will also indicate whether the process to be engaged in is conciliation or arbitration.
The expectation is that both the respondent and the applicant will appear before a Commissioner to give their versions on whether there was a dismissal and if so, whether it was fair, both substantively and procedurally. The Commissioner will then, after having heard the respective versions, analyse and evaluate them and decide on the balance of probabilities whether an employee had been dismissed and if so, whether it was fair. Both the CCMA and Bargaining Councils derive their authority or status to hear disputes and attempt to resolve them from the Labour Relations Act, ’95, as amended (sections 115 and 127 respectively).
There are two basic mistakes that employers usually make when they have been served with a notice to appear before the CCMA or Bargaining Council. Firstly, some ignore the request and continue with their business as usual, while others send a third party to go and relay second-hand information, which would then be deemed to be hearsay. Secondly, some simply write a letter to the CCMA or Bargaining Council and inform these statutory bodies that they will not attend the proceedings as they have other commitments on the day and that the matter should be postponed. They don’t check the timelines for asking that a matter be postponed, nor do they await the CCMA’s or Bargaining Council’s response to their request for a postponement. All these are a recipe for disaster and a huge pay-out to some employee and, in some instances, unnecessarily so.
In terms of the Rule 23 of the CCMA rules, a matter can be postponed by a written agreement between the applicant and the respondent, which must be lodged with the CCMA seven days before the scheduled date of the hearing. Alternatively, one of the parties can make a written application to have the matter postponed by filing the request with the CCMA and giving a copy to the other party to the dispute. It will then be up to the CCMA to decide whether to grant the postponement. The importance of first obtaining permission to be absent from the proceedings can never be over-emphasised to employers.
When a Commissioner deals with a matter where one of the parties is absent, he/she will satisfy himself/herself that the absent party had been duly served with the notice of set down. The CCMA or Bargaining Council has to provide such proof. Once the Commissioner is satisfied that such absent party had been duly notified of the proceedings, he is entitled, in terms of section 135 of the Labour Relations Act (LRA), 95, as amended, or in terms of Rule 23 of the CCMA rules to dismiss the matter, if the employee (applicant) is absent or to proceed with the matter if the employer (respondent) is absent.
Section 192 (1) of the LRA, 95, as amended, provides that any employee alleging an unfair dismissal bears the onus of proving the existence of the dismissal. Section 192 (2) goes on to state that once the existence of a dismissal has been proven, the employer must prove that the dismissal was fair. How then does an employer prove there was, in fact, no dismissal or that the dismissal was fair if he/she is absent at the hearing? If it is only the employee (applicant) testifying, such testimony would thus be uncontested and the Commissioner would have no reason not to accept the employee’s version as a true reflection of what occurred
The employee would thus be able to prove that there was a dismissal and the employer would fail to prove that the dismissal was fair. The Commissioner will then usually give the employee the relief that he/she was seeking, which in most instances means a pay-out or re-instatement. If you still want to ignore notices to appear before the CCMA or Bargaining Council, think again. Employers have had a Sheriff of the court attach their business assets in order to pay the default award issued in favour of an employee when such employer had failed to attend the arbitration hearing.
Another common occurrence is when employers to ask me to go to the CCMA or Bargaining Council on my own to present their cases, while they go on with their daily business. They forget that most of what I will be saying at those forums will be hearsay as I was not present when the issue that gave rise to the dispute occurred. It is important that employers are always present at CCMA or Bargaining Council hearings.
What to do once you receive a notice to appear before the CCMA or Bargaining Council:
- Contact your ECA representative;
- Forward all relevant documentation to the representative;
- Give your statement of events to your representative;
- Together establish which witnesses and documentation are relevant;
- If you have pressing commitments on the date of the hearing, ask your representative to ask for a postponement in good time; and
- On the date of the hearing, be there with your documentary evidence, witnesses and your representation.
Any enquiries should be referred to: Stephen Khola, National Labour Relations and Human Resources Director, ECA(SA) Head Office (011) 392 0000.