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It’s time to bridge the alarming CCMA service delivery gap

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Tzvi Brivik is a director at Malcolm Lyons & Brivik and the founder of LegalLyons, the firm’s secure, online, legal consulting division. He has substantial experience in labour law, medical malpractice, personal injury and discrimination matters – including ground-breaking litigation regarding the rights of whistle-blowers.

As the CCMA backlog continues to grow, part-time commissioners have been told they may represent private clients but need to choose between doing so and potentially returning to work as part-timers for a six-month period. This is mystifying. Surely the CCMA needs all the experienced part-time commissioners possible to clear the backlog of cases?

On 17 December 2020, I wrote in Daily Maverick that in November 2020, part-time commissioners, who hear the bulk of CCMA cases, were advised that budget cuts would result in a significant reduction of their numbers and the number of matters allocated to them. No new cases would be set down for hearing by part-time commissioners until March 2021.

We need to talk about what is happening at the CCMA – it’s a mess

Now, as the backlog of cases at the CCMA continues to grow, word on the labour street is that the CCMA hopes to begin setting matters down for hearing again from April 2021, but, failing an official announcement, this is not yet certain and it seems likely that even if matters are set down for hearing, those that are already part-heard will be set down for finalisation first.

While some conciliation hearings have been conducted telephonically, with emails being sent to follow up with the parties involved, confirm what occurred in the telephonic conversations and issue certificates of outcome (including for non-resolution), the process is cumbersome and time-consuming for both the commissioner and the parties involved. Furthermore, while the CCMA has enhanced its capacity to process matter referrals, once processed, without the full commissioner complement (in other words, both full- and part-time commissioners) being deployed nationwide, new matters are not being set down speedily for hearing.

So, with new matters not being set down speedily for conciliation hearings, new arbitrations not being heard, and part-heard arbitrations where matters have commenced before an acting arbitrator not having been set down again for finalisation (and the CCMA showing no willingness, alternatively capacity, to set such matters down before full-time commissioners either) and with this having been the status quo since November 2020, what are workers in desperate need of assistance in enforcing their constitutionally enshrined labour rights to do?

To recap the law: labour matters can only be referred to arbitration or the labour court if these have been conciliated at the CCMA (or a bargaining council if an employee is fortunate enough to be working in an industry where a bargaining council has been established). 

The CCMA has 30 days from the date of receipt of the matter’s referral in which to bring conciliation to conclusion and issue a certificate of outcome, unless the parties agree to extend the time period. Where there is no agreement to extend the time period for referral to conciliation, a certificate of outcome/non-resolution should be issued once the stipulated 30-day period has elapsed. Without the attempt at early resolution of the matter through conciliation, and the timeous issuing of certificates of outcome, can ways be found for the average unrepresented employee to proceed further with their claims, or will disputes become moribund and the swift dispute resolution process promised by the Constitution be rendered meaningless?

Should private dispute resolution services be used to bridge the CCMA service delivery gap?

Attempting to fill the gap, various private dispute resolutions services have been accredited. Such accreditation is by the CCMA itself in terms of the Labour Relations Act for purposes of conciliation and/or arbitration and any other enquiry which needs to be made by an arbitrator. These private dispute resolution services offer various services, at a fee – which may range from R12,000 per day to amounts of R4,000 per conciliation. 

While this might seem like a potentially meaningful complementary, or indeed supplementary, service to those that are meant to be provided free of charge by the CCMA, where is an employee to find that money should they wish to pursue their claim? And, more importantly, is it acceptable that private institutions have been allowed to step in in the face of serious delivery failures on the part of our legal system – delivery failures which have been caused directly by recent budget cuts?

Being able to exercise your legal rights should not be dependent on affording not only representation but also independently having to fund the forum in which the dispute may be heard. Hoping that employers will come to the party and offer to contribute towards the costs of private dispute resolution services for claims brought against them by their employees is largely unrealistic – unless of course they are concerned about reputational damage or the threat of a larger award being made against them in the future should they not agree to participate, and indeed contribute financially, to resolving the matter speedily.

It is far more likely that employers will wait for the CCMA backlogs to clear in the hope that the dispute(s) filed against them will simply fall away with the passing of time.

While it is true that the conversation always centres around the prejudice caused to employees, as opposed to employers, when labour disputes fail to be resolved speedily, the reasons are obvious. It is the employee who is left without employment; alternatively in discriminatory or otherwise unfair working circumstances. For many, this is compounded by little prospect of alternative employment – especially during the times in which we currently find ourselves.

At the risk of stating the obvious, the CCMA plays an absolutely vital role in placing unfairly dismissed employees back into gainful, non-discriminatory employment; alternatively providing them with compensation awards that hopefully go some way towards carrying an employee through until such time as they are able to find alternative employment.

At this point, it should also be noted that part-time commissioners who are qualified attorneys have been told that they may represent private clients at the CCMA but that they need to choose between doing so and potentially returning to work as part-time commissioners for a six-month period. The rationale for this is somewhat mystifying. Surely the CCMA needs all the experienced part-time commissioners who are willing to make themselves available to do so in order to clear the backlog of cases, finalise part-heard ones and resolve newly referred ones as speedily as possible? 

In view of the above, we need to continue talking about what is happening at the CCMA – as it is still a mess. The suggestion that the CCMA is functioning, or soon to be functioning, is untrue, unless the meaning of functioning is understood in its narrowest sense: literally being open to a very small staff complement and able to provide extremely limited assistance to the many thousands in need in the face of substantively and/or procedurally unfair and, in some matters, deeply discriminatory employer conduct – reports of which are coming in thick and fast as seemingly increasing numbers of employers take what they see as their opportunity to get away with it.

With South Africa’s very specific and poignant labour rights history, are we really going to allow this to happen? DM

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  • If the bulk of the commissioners had even the slightest experience in management in commerce or industry and their findings were founded in both common sense and/or personal experience, more employers might be inclined to assist in funding the CCMA.
    My experience has been that many employers find the CCMA a flawed organisation and that many findings would be taken on review, were it not for the very high cost of litigation in the Labour Court and the more cost-effective alternative being simply to settle.

  • I’m not sure if the CCMA has to take on and hear all cases regardless of merit, in terms of its charter under law. The CCMA takes on all cases reported to it, even when the employee is dismissed for criminal offences like fraud, theft, assault of fellow workers &c. Is there no prosecutor-like discretion to throw out cases where the commissioner is almost certain to find in favour of the employer? A lot of cases could be filtered out, and save time to focus on those of genuine unfair labour practice?