Please note that this pertains to South African Labour Relations, the Basic Conditions of Employment Act and Best Practice requirements.
There are often times that you will end up at the CCMA no matter how closely you follow the rules. Now I know that that sounds a bit harsh, but following the rules doesn’t mean that you will not end up at the CCMA, but what it does mean is that if you do end up at the CCMA, there is less chance of you losing your case.
Sadly there are also many cases where the “loser” at the CCMA is not only disappointed at the verdict but that they also appear to be quite shell shocked! Most of the time these individuals were extremely confident of success only to have that confidence lying shattered at their feet.
The reality is that often it is not about right and wrong – it’s about how you play the game. I just heard all the pins drop, the chins drop and the sharp intake of breath being rapidly inhaled and resulting in a shocked gasp!
You see the majority of cases are lost as a direct result of procedures not being followed, so you lose the case on those grounds.
But what about where you have followed every single rule, I hear you say? Well here are some of (but not limited to) the main reasons people (both employers and employees) lose their cases.
• The case was weak without you realizing it or despite the fact that you thought it was a strong case. Often this is because you did not have your case properly prepared, no documents or witnesses to give or confirm your evidence. Your sense of outrage and your emotion here was actually stronger than the facts in the case.
• Then, of course, you have the situation where you actually do have an extremely strong case, the problem is that again you are inadequately prepared. You don’t have the correct documentation or you failed to present your case in an understandable and convincing manner. Pretty much like representing yourself in a murder case in a court of law. If you don’t know what you are doing, chances are you will make a mess – so get some help!
• The worst of the lot is when it is genuinely unfair to the loser. This is when you have a strong case, you have followed all of the procedures correctly, you have presented it in the proper manner, you are properly prepared with all of the correct documents, you have witnesses who have corroborated your evidence, in fact, you have done everything correctly, but the arbitrator has failed to appreciate your case and you lose.
This is the one that you really want to challenge and this is the one that you absolutely have the right to challenge via review at the Labour court.
Next time we will have a look at how to do this.
HR 101 – It’s How You Play the Game – Part 2 – www.viljoenconsulting.co.za/2018/11/hr-101-its-how-you-play-the-game-part-2-2/