Thursday, December 11, 2008

I just received a notice of set down from the CCMA, now what?

First of all don’t panic. The CCMA is not a High Court or something that you need senior council for, it is a commission. An award by a commissioner is still binding however the CCMA is more set on settlement than Arbitration.

Do I need a lawyer?
No. An attorney will put the fear of God into you and then start charging you. First send a letter to the employee and the CCMA informing them that you object to Arbitration proceeding immediately after Conciliation. The CCMA will grant such an objection and the matter will be reset from “Con/Arb” to Conciliation.

During conciliation the Applicant/Employee is not allowed to have an attorney present, neither are you. The aim of conciliation is to settle the case. All that is said during conciliation is without prejudice in other words nothing you say can be used against you. Another commissioner will most likely do the Arbitration so don’t worry. Feel free to speak your mind.

To settle or not to settle, that is the question?
First of all commissioners vary a lot from place to place and person to person, and I have seen some weird ruilings in my time so don’t think this is the norm. Use this advice only during conciliation when you still have time to consult an attorney before Arbitration. 
Second of all the employee is an ungrateful son of a b***h. I know, now get over it.

All awards are based on a employee's basic salary. The CCMA may not award more that 12 months salary. Thus no matter if you beaten the employee or whatever 12 months is the max. In all my cases I have never seen 12 months be awarded. The most is 6 months. The commissioners reserve 12 months for sexual harassment, savage beatings etc.

Settlement is a pure numbers game. How long have the employee been working for you, what was his/her salary and why did he/she leave. You cannot be forced to settle during conciliation so don’t be bullied.

 If the employee absconded in other words never returned to work, he/she was never dismissed. If you can prove this don’t offer anything. The case will most likely be dismissed because the employee has to prove that he/she was dismissed. To prove that he/she absconded produce letters you sent to his/her home informing him/her to return to work etc. Just be able to show the commissioner you made an effort to make him/her understand that he/she is not dismissed. You can even tell the commissioner his still welcome to return. You can always dismiss him/her for absconding later. If you aren’t so sure and you get a hostile vibe from the commissioner make an offer as guided by below.

 If he/she was dismissed you have to prove the dismissal was fair. Anything can happen so in this case make an offer. If he/she worked for less than a year first make an offer of 2 weeks than 1 month.
If he/she has been working for more than a year make an offer of 1 month plus 1 week pay for each year worked. That is most likely what he/she is entitled to disregarding aggravating circumstances (like the snot klap you gave him/her). The commissioner will respect this and will be very irritated if the employee does not accept this.

Keep in mind that settling the case will save you at least R1500 (my minimum) in attorney’s fees. If you don’t settle during conciliation you may still request to revert to conciliation during the Arbitration when you have your attorney present. He will be in a much better position to give advice regarding settlement.

Remember commissioners want cases to be settled so throw them a bone.

If the case aren’t settled it is advisable to make use of an attorney depending on the salary of the employee. Anything above R1000 is advisable (you stand to lose plus or minus R6000) anything above R5000 is a must (you stand to lose plus or minus R30 000).  


Eeben Barlow's Milsec Blog said...

You are certainly providing your readers with a good idea of the law and how it works, Status Quo. Thank you for some very informative articles.



Status Quo said...

Than you Eeben you are welcome.

Anonymous said...

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Anonymous said...

how are you?

Just wanted to show my appreciation for your time and hard work