Navigating through South Africa’s labour legislation is tricky for employers with no background and little understanding of the correct processes. As a result, many employers have lost CCMA cases against employees, due to mistakes that could have been easily avoided.
When a case goes to the CCMA, the first thing a Commissioner looks at is “is this case substantively fair?”. This means that they check whether the case has merits in accordance with the law – i.e. the claimed offences are legitimate.
The second thing a Commissioner at the CCMA looks at, is “is this case procedurally fair?” and this is the point where many employers immediately lose the CCMA case.
Procedural fairness simply refers to the correct process/procedure and documentation for misconduct procedures. Let’s take a very simple example for a minor offence:
1. Did the employee receive a verbal warning? Is it signed and on record?
2. Did the employee receive a written warning for the same offence category before the verbal warning lapsed? Is it signed and on record?
3. Did the employee receive a final written warning for the same offence category before the written warning/s lapsed? Is it signed and on record?
Getting these easy and simple procedures right, increases your chances of winning a CCMA case with 50% as half of the criteria a Commissioner looks at is in place.
Unfortunately, many employers find themselves with completely legitimate cases and lose because their paperwork was completed incorrectly, lost, or not properly recorded.