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November 10, 2017

Is Success at the CCMA All About the Merits of Your Case?

ccma Andrew Butters

Is success at an arbitration at the Commission for Conciliation Mediation and Arbitration (CCMA) or a bargaining council all about the merits of your case?

The answer is that the merits of your case carries significant weightiness but success extends beyond that into a number of other important considerations bearing in mind that a Commissioner of the particular dispute resolution forum is a real person with real emotions and feelings.  Inasmuch as one would expect that the decision made in any arbitration is perfectly objective, there is a level of subjectivity that will always come through, whether in the handling of an arbitration or any decision to be made.

In regard to the adjudication of a labour dispute through the arbitration process the key factors that would play a role are the following:

  1. Track Record :- Does the employer have a track record of appearing at the CCMA with poorly prepared cases which are lost at arbitration phase?  Quite patently Commissioners do not view employers who are reckless and who appear in front of them with flimsy and feeble cases in a positive light at all.
  2. Choice of the Representative:- Employers at the CCMA or a bargaining council are often judged on the level of proficiency and competence of any representative defending their case at arbitration, be it an employee of the Company, a lawyer or an office bearer of an employers organisation. This means that the choice of who represents the Company at the CCMA is so vital and a competent, skilled representative familiar with the rules and protocol of the CCMA and what to do to secure a successful case at the CCMA or bargaining council should be chosen.
  3. Proper preparation of the Case:- All Commissioners want to see a representative at work who has prepared his/her case thoroughly according to the rules and who knows the case well.
  4. Courteousy Trumps Feistiness:- Not all Commissioners appreciate the “bull dog” approach to arbitration matters where Applicants are torn apart limb for limb by Respondents’ representatives determined to show how clever and “mean” they can be.  The courteous approach does not imply that representatives should not be incisive and probing during cross examination but it does mean that cross examination should be done with courteousy, dignity and respect given that the CCMA was always designed to be a place where lay people would come to be able to resolve employment disputes.  It was never designed to be the place where legal minds would fight complex legal battles notwithstanding that the approach taken in the CCMA or bargaining council approximates that of a court of law.
  5. The Merits:- The merits of an employer’s case would be strongly considered by any Commissioner required to hear and adjudicate an arbitration.   This simply means that the correct procedures should have been followed in dismissing any employee and the reason for the dismissal should be justifiable.

If an employer required to defend a labour case at an arbitration were to consider these factors prior to the arbitration itself and were to question itself on them, their chances of having a successful arbitration process would be dramatically improved and the need to settle labour disputes on a financial basis would become redundant, which would, in turn, significantly reduce the number of frivolous referrals to the CCMA and bargaining councils.

Andrew Butters, motivational speaker, Inspiring Performance

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