Unpacking the Dispute Resolution Process: What to expect!

“The quality of our lives depends not on whether or not we have conflicts, but on how we respond to them.” – Thomas Crum

Introduction

The purpose of this article is to give members a general overview of the Disciplinary Process at company level, as well as the Dispute Resolution Process at the Bargaining Council level, in order to empower you with the knowledge of what to expect.

This is merely a guideline and cannot be a substitute for proper legal advice, as such, we encourage you to contact MISA Legal Department for the appropriate advice, if you find yourself in the unfortunate situation, whereby you are placed under the disciplinary scrutiny of the company.

The Internal Disciplinary Procedures

It all begins with a notice to attend a disciplinary hearing; (however, occasionally it may begin with a notice of paid suspension from duty, pending the disciplinary hearing – this would depend on the nature and severity of the charges, amongst other reasons).

At the disciplinary hearing, an independent chairperson will hear evidence from the employer and the employee (and/or his representative). MISA may not necessarily represent you at the hearing, as representation is dependent on a few factors. Most important to note here, is that in accordance with schedule 8 of the Labour Relations Act 66 of 1995, as quoted below, representation from your union official (MISA) at internal disciplinary hearing is not an automatic right afforded to a member.

Clause 4(1) of Schedule 8 of the Labour Relations Act 66 of 1995 (LRA) states:

 Normally, the employer should conduct an investigation to determine where there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegation using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and the assistance of a trade union representative [shop steward] or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision. [own emphasis]

 You will note that MISA does not have elected shop stewards at the work place.

The question on whether representation is allowed will depend on the company disciplinary policy and/or whether there exists a recognition (collective) agreement between the employer and the union.

In other instances, MISA will usually apply to represent you at the disciplinary hearing, however the decision on whether to grant representation will rest with the chairperson, after considering aspects such as, the employer’s acceptance or rejection thereof, amongst others.

At the internal hearing, you should be given an opportunity to present your case and test the evidence through cross-examination. Thereafter, the chairperson will render a written outcome, with reasons. 

The External Dispute Resolution Process

Should you be dismissed, as result of having been subjected to a disciplinary hearing, you will be faced with two options:

1. If the disciplinary policy allows for it: lodge an internal appeal.
2. Refer an unfair dismissal dispute to the Bargaining Council (MIBCO) dispute resolution centre (DRC) or to the Commission for Conciliation Mediation and Arbitration (CCMA) for Conciliation (depending on which forum has jurisdiction).

However, one must always bear in mind that a referral for an alleged unfair dismissal should depend on whether there are sufficient merits to challenge the dismissal.

Sanctions Short of Dismissal

Should you not be dismissed, but you consider the sanction to be unfair (for example, you receive a Final Written Warning for a first offence, where the disciplinary code suggests a Written Warning); you again have the option to refer an Unfair Labour Practice (ULP) dispute to the appropriate forum. Depending on the merits of each case.

Time Periods

An unfair dismissal dispute must be referred within 30 days from date of dismissal and a ULP must be referred within 90 days from the date of the act or omission, which gave rise to the alleged ULP; in accordance with section 191(1)(b) of the LRA.

The Finalization of the Process

If a settlement is reached at Conciliation, that effectively resolves and finalizes the dispute.

If the dispute remains unresolved at Conciliation, a certificate of non-resolution will be issued. The employee will then have 90 days to refer the dispute for Arbitration.

At Arbitration, the parties usually will be afforded one last opportunity to resolve the dispute.  If settlement is reached, an agreement is drafted accordingly by the Commissioner, which effectively finalizes the matter.

If the dispute is not resolved, the arbitration proceeds. Once finalized, the Commissioner will issue an award generally within 14 days.

What happens if the employee is not happy with the Award?

Any party that is aggrieved by a decision of any arbitrator can take the Award on review to the Labour Court in terms of section 145 of the LRA.

Section 145 of the LRA provides that:

The test on review has been settled by the Constitutional Court in the case of Sidumo & Another v Rustenburg Platinum Mines Ltd & Others [2007] 12 BLLR 1097 (CC), whereby it was held that the reviewing court has to determine whether the conclusion reached by the arbitrator is one a reasonable commissioner might have reached [own emphasis]. This has the effect that the reviewing court will not interfere lightly with the arbitrator’s decision unless that decision was one which a reasonable commissioner would not have reached. The courts have expressed that the constitutional standard of reasonableness must be suffused in the application of section 145, above.

On review, even if any of the aforementioned grounds as per Section 145(2) of the LRA are established; the decision may still not be set aside if the decision reached is still a reasonable decision.

Therefore, from the above, we can determine that an application for the review of an arbitration award is quite difficult, as the party bringing the application will not only be required to prove a defect in arbitration proceedings as set out in section 145, but also has to prove that the decision in itself was unreasonable.

Conclusion

Members are encouraged to acquaint themselves with the legal process as set out above so that they are aware of what to expect if and when they are subjected to a dismissal or unfair labour practice.  

Remember, MISA is just a phone call away. 

(Article by Joshua Nattar – Edited by Nichole Turner)

Kindly utilise the following e-mail addresses and links for assistance during this time: 

Employer UIF/TERS Submissions                  UIFClaim@ms.org.za

Legal/Labour-related enquiries                      Legal@ms.org.za  

Legal Reception                                                011 476 3920

MISA Benefit claim-related enquiries            Claims@misa.org.za   

Any other enquiries                                          Info@ms.org.za  

Website                                                              www.misa.org.za    

Mobile App                                                        https://onelink.to/w9a7ku