You spend weeks planning for the CCMA. You make sure you have everything in order. But despite all your hard work, you lose. And now you have to pay your employee 24 months' salary as his award. Once your employee has an award in his favour, he can enforce it against you. He can even have the Sheriff attach your property and sell it in execution if you don't pay.
That's why you need to know what to do to prevent an employee enforcing an arbitration award against you.
Follow these strategies to prevent your employee from getting his money.
You must have your case reviewed to stop your employee from getting his money
A review looks into if a commission carries out an arbitration hearing correctly and fairly. Only the Labour Court can review an award a Commissioner gives.
You must meet one of these four criteria to have your case reviewed
The most difficult part of having getting your case reviewed is deciding if it actually has merit.
So if the Commissioner does one of the following four things then you can ask for a review of your case:
1. The Commissioner commits misconduct
This is where the Commissioner shows bias against you. Or he was aggressive to your witnesses during the cross examination. It could also be where he ignores the evidence you give.
2. The Commissioner commits gross irregularity when he conducts the proceedings
This is if he isn't justified in interfering with the penalty you impose on your employee. For example, you can justify the employee's dismissal, but the Commissioner says you have to re-instate him.
It's also if the Commissioner doesn't allow you to cross-examine a witness. And if he hears a matter he doesn't have jurisdiction to.
Fact: The CCMA doesn't care why you dismissed an employee... It only wants to know if you dismissed him fairly
Everything you need to know about substantively and procedurally fair disciplinary hearings
So… Your employee's guilty of misconduct. Let's say he took a company laptop home, without asking permission. It's a simple open and closed case of theft, isn't it?
Not so fast! You can't just say 'that's it, you're out of here' and think that's the end of that. No, you still have to hold a disciplinary hearing. You still have to give him a chance to defend his case, and explain why he did that.
You also have to prove that he did this. You have to spell it out for him and notify him you're going to discipline him. And you have to give him time to prepare his case.
3. Exceeding of 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 LRA. So, in circumstances where a Commissioner goes beyond what the LRA empowers him to do, you can ask for a review.
A Commissioner exceeds his powers if he awards compensation of 36 months. For example, where you dismiss an employee for theft. This will make the arbitration award reviewable. A Commissioner can only award compensation to a maximum of 12 months for an unfair dismissal. By awarding 36 months, it's more than the LRA allows, and the Commissioner is exceeding his powers.
4. Failure to make a rational connection
This would be where the Commissioner finds all of your witnesses are credible and all the evidence you lead is believable. He then finds the employee was lying. But decides you must re-instate the employee anyway.
This is not rational. It's clear the award isn't justifiable when looking at the background of the findings made and the evidence you give to him. You would most likely 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 need to fill in a review application form. You can get this from the Labour Court.
You'd need to do this within six weeks of receiving the arbitration award. But don't be late with this. The Labour court doesn't excuse lateness as easily as the CCMA does.
If you're successful with your review application, the arbitration award will either be set aside and the matter sent back to the CCMA for a fresh hearing, or the Labour Court may decide the matter itself without sending it back to the CCMA.