Ccma employer rights commission
Image by Free-Photos from Pixabay. An employer must act when sexual harassment takes place on its premises, even if this is during a meeting which the employer has not authorised, the Commission for Conciliation, Mediation and Arbitration CCMA has found. His trousers were unbuttoned and he was masturbating. Shocked, she leapt to her feet and cried out in protest.
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Legal representation at CCMA
South Africa. Published by: ENSafrica on 15 Jun The SDA provides that a learnership agreement may not be terminated before the expiry of the period of duration specified in the agreement unless the learner is fairly dismissed for a reason related to their conduct or capacity.
In addition, any dispute regarding the termination of a learnership agreement may be referred to the CCMA. If the dispute cannot be resolved through conciliation, any party to the dispute may refer the matter to arbitration. The SDA requires that, in addition to the learnership agreement, a contract of employment must be concluded between the learner and the employer that is party to the learnership agreement. However, if the learner is already an employee at the time that the learnership agreement is signed, this does not apply.
In the above case, Ms Mahasha had been appointed as a learner traffic officer and had concluded a learnership agreement with the Limpopo Department of Transport. However, no employment contract was concluded between her and the Department as required by the SDA. The learnership agreement was terminated by the Department after Ms Mahasha was found in possession of unauthorised notes during a written assessment.
Ms Mashaba then referred a dispute to the bargaining council for the public service sector. She then referred an unfair dismissal dispute to the CCMA and, in the referral form, referred to herself as an employee of the Department. This referral was done in terms of the provisions of the LRA. Ms Mahasha sought to review this ruling in the Labour Court.
The Labour Court rejected this argument. It held that, if Ms Mahasha wanted to rely on a right conferred by the LRA, she would have had to establish that she was an employee as defined in the LRA. This was not the case here as no employment contract had been concluded. The court said:. Section 18 thus contemplates discrete agreements regulating each of these relationships of learnership and employment, and provide separately for disputes concerning the termination of each.
The referral made to the CCMA in the present instance was made in circumstances where the applicant invoked the right not to be unfairly dismissed, a right established by the LRA and conferred only on employees. On her own version, the applicant was not an employee as defined in section of the LRA, and it was not open to her to seek remedies available only to employees whose employment has been terminated.
The arbitrator was thus correct to conclude that the CCMA lacked jurisdiction to entertain the dispute. The court did, however, find that Ms Mahasha was not precluded from referring the dispute concerning the termination of the learnership agreement to the CCMA in terms of the SDA. In this decision, the court held that it did not have jurisdiction to consider the dispute in terms of the LRA because there was no employment relationship between Ms Mahasha and the Department.
The implication is therefore that, if there had been a contract of employment concluded between the Department and Ms Mahasha, the Labour Court could have exercised its jurisdiction in terms of the LRA. In addition section 19 7 , in accordance with the provisions of section of the LRA, states that it amends any contrary provision of the LRA. This article was first published here. Can someone in a learnership agreement refer a dispute to the CCMA?
Related Firms ENSafrica. Related Jurisdictions South Africa.
The Labour Court
Legal representation at internal disciplinary enquiries: the CCMA and bargaining councils. The role of the CCMA and bargaining councils in labour dispute resolution. Toggle facets Facets. Add All Items to Quick Collection. Sorted by Date Title Creator Date. Quick View. Despite no amendments to labour legislation pertaining to the issue at hand there was however a recent Supreme Court of Appeal judgment.
A self-help guide to the CCMA
With any other type of dismissal or dispute, legal representation is automatically allowed. However, legal representation at the CCMA is not allowed during conciliation proceedings. If the Commissioner deems it unreasonable to deny a party legal representation at the proceedings after considering all the factors, including the nature and complexity of the dispute and whether it would be in the best interest of the public, then such CCMA representation may be allowed. It was held that the fact that the rule distinguishes between different kinds of cases, does not render the rule irrational. Furthermore, it held that there is no unqualified constitutional right to legal representation before administrative tribunals. At the time of writing this blog, the matter had not been decided by the Constitutional Court. SERR Synergy encourages all employers to have adequate representation for these proceedings. This will be a crucial factor in the case and will play a major role in the ultimate success at the CCMA. Henri was admitted as an advocate of the High Court of South Africa. When is legal representation allowed at the CCMA?
Are employers required to disclose investigation reports in the CCMA?
Our website uses cookies to offer you a better browsing experience, analyse site traffic, personalise content, and serve targeted advertisements. Please visit our Cookie Policy page for more information about cookies and how we use them. Add to Documents allows you to add The Labour Court content to your personal documents for viewing or printing later. If you are involved in a complaint or a dispute related to your workplace, whether you are an employer or an employee, the State provides, through the WRC and the Labour Court, dispute resolution mechanisms which may help you to resolve workplace issues.
CCMA process explained
This article briefly considers how some section 73A disputes have been dealt with by the CCMA and bargaining councils. The DEL would then allocate an inspector tasked with taking the necessary steps by engaging with the employer to resolve the dispute. This provision, however, is intended to assist low-income earners as it does not apply to employees or workers who earn more than the prescribed threshold of R Employees or workers earning above the threshold may instead institute a claim concerning failure to pay any amount in section 73A 1 in either the Labour Court, High Court, Magistrates Court or Small Claims Court if they meet the necessary jurisdictional requirements for either court. In a section 73A referral, the CCMA must appoint a commissioner to attempt to resolve a dispute by conciliation.
NEW HOPE FOR LEGAL REPRESENTATION AT CCMA AND BARGAINING COUNCILS?
Conciliation is a voluntary process to help an employer and employee resolve an unfair dismissal dispute. It is an informal method of resolving the claim that is generally conducted by telephone and can avoid the need for a formal conference or hearing. If you choose not to have a conciliation, or you have a conciliation that fails to produce a settlement, the case will automatically go to a hearing or conference unless the employee formally discontinues their application. Because it is conducted by telephone you do not need to come to the Fair Work Commission offices. Conciliation is an informal, private and generally confidential process where a Commission Conciliator helps employees and employers to resolve an unfair dismissal application. The conciliator is independent and does not take sides, but works to bring the parties to an agreed resolution. In conciliation, each party can negotiate in an informal manner and explore the possibility of reaching an agreed settlement. Any outcome is possible if both parties agree to it.
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Every employee has the right to fair treatment and should not be unfairly dismissed or subjected to unfair labour practice. An employer, union or employer organisation may also refer a dispute to the CCMA. The LRA stipulates that if any one or more of the following conditions exist, the person is considered to be an employee:. What types of disputes can be referred to the CCMA?
During the financial year — the CCMA received a staggering dispute referrals. Thus dispute referrals every working day. In short the amendments to labour legislation and with it, the scope of jurisdiction of the CCMA increased exponentially. As a consequence of the introduction of the abovementioned legislative amendments, that came into effect on 1 January the Rules for Conduct of proceedings before the CCMA CCMA Rules have been amended to regulate the amended legislation. The purpose of the amendments to the Rules was to rectify past difficulties as to interpretation and to streamline and expedite CCMA processes. One of the more controversial Rules has always been the Rule The architects of the LRA of have adopted the policy decision to limit the role of legal practitioners during conciliation and arbitration proceedings.
Following receipt of the investigation reports, SASCOC charged the employees in terms of its disciplinary code and procedure, convened disciplinary hearings, and dismissed the employees. SASCOC refused on the basis that the investigation reports were protected by legal privilege, and in any event, were not relevant. This ruling was taken on review to the Labour Court.
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