I have seen an influx of posts from applicants complaining that they have lost their cases at the CCMA and/or Bargaining Councils, despite having had strong cases, and therefore they feel that the relevant presiding Commissioner may have accepted a bribe from their previous Employer (The Respondent).
This in itself is a serious allegation, that should not be thrown around without any concrete proof as it may lead to a defamation case.
The biggest challenge, in my opinion, is that Applicants are going to their CCMA matters without representation and then they are expected to present their cases against seasoned labour law professionals.
CCMA rule 25 does allow representation during certain kinds of disputes or CCMA processes, however majority Applicants opt to represent themselves due to lack of understanding and/or knowledge.
Majority Applicants believe that the presiding Commissioner will be assisting them and usually doesn’t understand that the CCMA is an independent third party that needs to remain impartial during the proceedings.
The fact that the CCMA assists Applicants with their referral does not entail representation by the CCMA during their processes.
The presiding Commissioner will ensure a fair process during the proceedings but cannot assist the Applicant with preparing or presenting his/her case, cross-questioning of the Respondent or their witnesses, etc., as he/she will then be seen as being biased/one-sided.
The Applicant usually arrives having to go up against an experienced Director and/or HR professional and/or an Employer’s Organisation, who are all very familiar with the Labour Relations Act, CCMA Rules and presenting cases. They therefore have the correct bundle of documents ready and have witnesses lined up, etc.
The Applicant usually has no labour law experience therefore they only bring an old envelope or plastic sleeve with copies of the disciplinary paperwork (if a fair process was followed), their employment contract and pay slips (if issued) or their statutory documents (if issued), etc., in most times no documents.
The Applicant is further expected to understand how to cross-question the witnesses and therefore fail to ask important questions, thinking they can rely on it later when giving their own testimony. The labour expert from the Respondent will most likely claim that it’s a different version than what was testified by the witness and that it was not disputed during cross-examination and therefore hearsay.
By then it’s too late to want to get the witness back, as the opportunity has passed, which may lead to important information not being considered by the presiding commissioner. This will most likely result in the Applicant weakening their case, not because they had a weak case, but due to the lack of presenting the case and ability to cross-question accordingly.
Applicants also do not understand that the CCMA work with a balance of probabilities outcome scale. Then upon receiving an award not their favour, they feel that even though they had a good case, they still lost, which makes them believe that the CCMA Commissioner may have been bribed or did not have their best interest at heart.
Applicants fail to understand the real reason for the unfavorable outcome, was that their case was poorly presented due to lack of labour law knowledge and not due to the relevant Commissioner having accepted a bribe or not having had their best interest at heart.
I strongly recommend that Applicants do not attempt to present their own cases, as the outcome will most likely not be in their favour, despite the strength of their case, due to their lack of labour law.
I understand that the CCMA’s services are free, and they assist Applicants with the referral process, but thereafter Applicants are left on their own to defend their case during Arbitration, against an experienced labour law representative from their previous employer.
Rather contact Pangea Labour Solutions to assist you and ensure that your case in properly presented by an experienced labour law professional in the correct manner, which will increase your chances of winning.
This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact us on:
Email: helpdesk@pangealabour.co.za
WhatsApp: 076 723 7983
Written by: Johann Viljoen, Managing Director, Pangea Labour Solutions.
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