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Warning: You don't have a chance of conciliation at the CCMA anymore when it comes to EE issues!

by , 18 July 2016
Warning: You don't have a chance of conciliation at the CCMA anymore when it comes to EE issues!We've been talking a lot about the Employment Equity Act (EEA) Amendments lately. And that's because they're a big deal! Previously, most cases first had to go through conciliation at the CCMA before going to the Labour Court. This meant you had a chance to negotiate with an employee and come to a mutually beneficial agreement during conciliation.

But now, one of the changes says an employee who earns less than the minimum earnings threshold, currently R205 433.30, can refer a complaint about Employment Equity issues or sexual harassment straight to arbitration at the CCMA. This means that both you and the employee present your cases to a judge and he decides what the outcome is.

So, you no longer have a chance to come to a settlement arrangement with the employee. The judge decides what the outcome is. But don't worry, I'll tell you what the four main steps of an arbitration hearing are, so you can make sure you prepare your case.
 
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Four main steps of an arbitration

 
Let's look at an example… Let's imagine your employee doesn't agree with you when you decide not to promote him. He thinks this is unfair discrimination on your part. You, as his employer, have to prove you didn't discriminate against him but your decision was justified and fair.
 
Let's look at what happens in arbitration…
 
The four main steps of an arbitration hearing

Step#1: Each party makes an opening statement

The Commissioner usually allows both parties to make an opening statement. In a normal dismissal case, you'll make your statement first.
 
Give an outline of the case you're going to present. This way the Commissioner will understand the context of the evidence each witness presents. He'll also be in a better position to assess the evidence you present.
 
Get a full guide for your opening statement here
 
Step#2: You present your case
 
You'll present your case by calling all the witnesses necessary to:

  • Establish the facts you need to prove your case; and
  • Counter the other party's case.

In our example, you'll call all your witnesses before the other party starts calling his. As mentioned, you have to prove you didn't discriminate against him, or you can justify why you didn't promote him. For example, he didn't meet the inherent job requirements.
 
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Step#3: Your employee presents his case

The employee now gets the chance to present his case. He can do this by giving evidence himself, but he can also call witnesses to support his case. He'll give evidence-in-chief and you'll get a chance to cross-examine him. After that, he can respond, or his representative can re-examine him. This happens for each witness he calls. When the employee has called all his witnesses, he'll close his case.
 
You should keep notes of the evidence your employee and his witnesses give so that you:

  • Pick up on things you need to question when you cross-examine;
  • Make a note of things the employee or the witness say that help your case;
  • Make a note of things the employee or the witness say that contradict what they've said before or that are different to other evidence. For example, minutes of the disciplinary hearing; and
  • You can refer to the evidence of the employee and his witnesses when you argue your case at the end.

Step#4: Each party argues their case

Once both parties finish leading their witnesses and close their case, the Commissioner will give you each a turn to make a closing statement.This is also an argument.The party that led evidence first gets to argue first. 
 
Once the Commissioner makes his decision, he must serve the award on each party or their representatives. This means he'll give his decision.
 
So now you know the basics of an arbitration, you can ensure you're ready to present the best case possible at the CCMA!
 
Bu this is only one aspect of the CCMA… For everything you need to arm yourself at the CCMA, and more… Click here now.  

P.S.  Do you need to find out how the 26 changes to the EEA have affected other companies? Come to our EE Summit where you can get all the answers…


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