While I have heard complaints about incompetent CCMA commissioners I have had the pleasure of presenting cases before some highly competent arbitrators
Uncertainty as to whether or not you will have a competent arbitrator presiding over your case is bad enough. However, if you also arrived at the CCMA without labour law expertise you are doubly weak. That is, if the arbitrator is weak and you are strong in labour law you may well be able to help the arbitrator see that light. But if your own knowledge is also bad you are a sitting duck for your opposition’s legal representative.
Due to the fact that ignorance of the law is no excuse employers who do not know the law normally come of second best at the CCMA. Why do employers, twenty years after the creation of the new Labour Relations Act (LRA), still not know the law? There are many reasons:
- The LRA has been badly written in parts and is therefore confusing to employers
- The vast difference in interpretation of the LRA by arbitrators and judges adds to the confusion amongst employers
- Even those laws that are reasonably clear and less subject to interpretation are very complex and numerous.
- Employers are unwilling to spend the time and money necessary to train their managers on how to discipline and otherwise treat their employees. It is only when employers lose a case at the CCMA that they realise the value of legal expertise.
In the light of the above it is clear that, for some time, parties will not know what level of expertise they will find in the arbitrator who hears their case. The best a party can do, in view of this uncertainty, is to ensure that they spare no expense in going properly equipped to the CCMA. In this way they will be able to:
- Distinguish between good and bad arbitrators
- Tactfully point out to the arbitrator where he/she might be erring
- Recognise which acts of the arbitrator, if any, need to be taken on review.
Being properly equipped to go to CCMA includes:
- A firm grasp of the laws of evidence
- A thorough understanding of the LRA
- Continuous updating of one’s knowledge of case law and an understanding of what it means for one’s own case.
Written by lvan lsraelstam, CEO, Labour Law Management Consulting