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Miss your date with the CCMA and your employee's probably going to win!

by , 30 September 2015
It doesn't matter if you're right and have a watertight case... If you don't appear at the CCMA to defend your case, there's a very good chance the commissioner will rule in favour of the employee. And you'll lose!

Let's look at a case where this happened...

The case in question
Pierre Gerard Baillache v Lesedi Nuclear Services (Pty) Ltd [2008] JOL 22512 (CCMA)
The facts: 
  • Three months before the end of his fixed-term contract, Lesedi told the employee they were replacing him. 
  • Baillache, the employee, went to the CCMA. He said his dismissal was substantively and procedurally unfair. 
  • The company didn't go to the CCMA on day of the arbitration. But it went ahead without them anyway. 

Check all the right boxes when building, preventing and defending your case at the CCMA

Here's a taste of just two of the 11 vital checklists you'll receive:
1. How to prepare for arbitration
Walk confidently into the CCMA knowing you've prepared the best case possible and, because of this, you'll win. You won't have sleepless nights knowing you've crossed your t's and dotted your i's because you ticked all the boxes!
2. Evidence that's generally not admissible 
Gathering the evidence against that useless employee was easy... You've got loads of reports and statistics to prove he wasn't doing the job he was supposed to. Right? But stop! Can you submit these documents as proof? This checklist shows you what evidence to submit to win your case.
Now you won't have to gather mountains of irrelevant information and documents that won't even help you win your case. And because your job's tough enough as it is, with the CCMA for Managers you don't need to waste another minute worrying about that ex-employee!

So, what happened?
  • The commissioner only had the employee's evidence to go on. 
  • Because of this, it found the company dismissed him unfairly. 
  • The commission said Lesedi must pay the employee the balance of his contract, a sum of R98 168. Because if they didn't dismiss him unfairly, that it was what they would've paid him.
What can you learn from this case?
You need to take away two important lessons from this case:
1. Follow the same rules of dismissal for both permanent staff and employees on fixed-term contracts.
If you want to terminate the contract before it expires, you still need good reason and must hold a fair hearing. Good reasons include operational requirements – if your contract allows for it, the employee's misconduct or incapacity. 
Use this sample clause in your fixed-term contracts to make sure you can retrench a fixed-term employee if you need to:
'You agree that the services provided by you may be terminated for good reason (including, but not limited to, operational reasons, poor performance and misconduct) before the expiry date of the fixed term agreement.'
2. Always attend the hearing when the CCMA sends you a notification.
If you don't, you forfeit the chance to have your say and defend your case. This will leave the commissioner with only the employee's side of things. Unless the employee is blatantly lying, the commissioner will generally rule in the employee's favour. 

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