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Your employee beat you at the CCMA... But you don't have to pay him!

by , 19 March 2015
You've spent weeks planning for the CCMA. You made sure you had everything in order. But despite all your hard work, you lost.

And now you may have to pay your employee 24 months' salary. Once your employee receives an award he can enforce it against you. He can even have your property attached by the Sheriff and sold in execution if you don't pay.

But today, I'm going to tell you how you can avoid this and potentially not pay a cent to your employee...

You must have your case reviewed to stop your employee from getting his money

A review is an enquiry to check if an arbitration hearing was correct and fair. Only the Labour Court has the power to review an award given by a Commissioner.

You must meet one of these four criteria to have your case reviewed 

The most difficult part of having your case reviewed is deciding if it qualifies for a review. 

If the Commissioner is guilty of one of the following four things then you can ask for a review:
1. Misconduct in relation to his duties;
2. Gross irregularity in the conduct of the proceedings;
3. Exceeding his powers; and
4. Not making a rational connection between the evidence you gave him and his decision.

Let's look at these in more detail so you know what steps to take to have your employee's award and your case reviewed...

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1. The Commissioner commits misconduct
This is where the Commissioner shows bias towards you or is aggressive toward your witnesses when he cross-examines them. It could also be ignoring the evidence you give.

2. The Commissioner commits gross irregularity when he conducts the proceedings
This is when the Commissioner isn't justified in interfering with the penalty you imposed on your employee. This will be where you can justify dismissing your employee, but the Commissioner says you must re-instate him.

It would also be where the Commissioner didn't allow you to cross-examine a witness.

Gross irregularity will also happen where the Commissioner hears a matter but the CCMA didn't have jurisdiction. In other words there was no dismissal as the employment relationship was terminated on amicable terms in full and final settlement. The employee resigned and there's no merits for claiming constructive dismissal, or the 'employee' was an independent service provider, not an employee.

3. Exceeding the powers
It's often easier to determine this ground of review than the others because it's relatively straightforward. A Commissioner gets his powers from the Labour Relations Act (LRA). So, in circumstances where a Commissioner goes beyond what the LRA empowers him to do, you can ask for a review.

For example, a Commissioner exceeds his powers if he awards compensation of 36 months in a case of dismissal for theft. Because a Commissioner can only award compensation up to 12 months for an unfair dismissal. By awarding 36 months, it's in excess of what the LRA allows and the Commissioner exceeds his powers.

4. Failure to make a rational connection
This is where the Commissioner finds all of your witnesses are credible and all the you lead is believable. He then finds the employee is lying, but decides you must re-instate him anyway.

This is not rational. It's clear the award isn't justifiable when looking at the background of the findings the Commissioner made and the material available to him.

You'd probably succeed with a review.

What should you do once your case meets these four criteria?

Once you're sure that at least one of these four areas above applies to your case, you can file review papers at the Labour Court.

You'd need to fill in a review application form. You can get this from the Labour Court. You have to do this within six weeks of receiving the arbitration award.

Do NOT be late in doing this. The Labour Court doesn't excuse lateness as easily as the CCMA does.

If you're successful in your review application, the arbitration award will either be set aside and the matter sent back to the CCMA for a fresh hearing, and a fresh finding. Or the Labour Court may decide the matter without sending it back to the CCMA.

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