Don't let sloppy record-keeping, short-term memory loss (where a manager recalls last week's budget slip-up but not the six successful seminars your employee ran in January) or hot-cold reviews, be the reason your employee screams 'unfair dismissal'. Use this one-of-a-kind software's evaluation sheets to prove just cause if you terminate his employment and he takes you to the CCMA.
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.