In line with the anticipated changes to the LRA and the BCEA, it is vitally important that practitioners appreciate what, firstly, their preparation and, secondly, their representation at the CCMA or bargaining council will entail in respect of the following:
- Dealing with a request for the postponement of arbitration that will attract a ruling made by a commissioner that a party is to pay the CCMA a fee
- The effect of an arbitration award to be treated as an order of the magistrate’s court or the labour court
- The consequences of the anticipated provision that a fair procedure relating to a dismissal, as set out in the LRA and amplified in the Code, is subject to an applicable collective agreement
- The consequences of the requirement of substantive and procedural fairness not applying to new employees
- The new protocols relating to an enquiry by an arbitrator
- The commencement of arbitration immediately after certifying that a dispute remains unresolved
- The jurisdiction of the CCMA and bargaining council dealing with automatically unfair dismissals in terms of s187(d), s187(e) and s187(f) – the distinction between employees earning below and above the threshold in terms of s6(3) of the BCEA is of relevance
- The fact that reinstatement or re-employment is not applicable to an employee who earns more than the threshold determined ito s208B of the LRA (currently R1.8m), unless the dismissal is automatically unfair
- The new maximum anticipated compensation for unfair dismissals
- The new maximum anticipated compensation for unfair labour practices
- The limitation on an employee to institute a claim, arising from the same facts, based on an unfair dismissal as well
as an unlawful dismissal – and the obvious consequence that this is not applicable to unfair labour practices - The extended jurisdiction of the CCMA to deal with disputes concerning whether there has been compliance with
a collective agreement – seeing that currently such jurisdiction is limited to the interpretation or application of a
collective agreement and does not include its enforcement - The jurisdiction of the CCMA to undertake dispute resolution in terms of the newly statutorily-created category of employees, namely, on-call employees
- The extended jurisdiction of the CCMA and bargaining council to deal with any disputes regarding the entitlement of severance pay and not merely the application of s41 of the BCEA – this is particularly relevant in view of the approach that an employer is entitled, in circumstances where it assisted the employee to be retrenched in finding alternative employment, not to pay severance pay – with specific reference to Khanya Cleaning Group (Pty) Ltd v SA Transport and Allied Workers Union (2025) 36 SALLR 448 (LC)
- The jurisdiction of the CCMA when, on good cause, an employer refers a dispute to the CCMA outside the period within which it has to comply with the compliance order to condone such late referral
- The jurisdiction of the CCMA to deal with an employer’s failure to pay a contribution to a benefit fund on behalf of an employee
- The jurisdiction of the CCMA when an employer fails to pay contributions to funds falling under the Pension Funds Act
- The jurisdiction of the CCMA to deal with the extended definition of an employee in terms of s3(4)(a) of the BCEA Amendment Bill
- the steps to be undertaken by a commissioner to determine whether the termination of a fixed-term contract amounts to a dismissal
- The jurisdiction of the CCMA in terms of s198D of the LRA, dealing with the interpretation or application of s198A, s198B and s198C – we will specifically deal with the fact that, after a declaratory order has been obtained from the CCMA/ bargaining council in this regard, the employee entitled to relief cannot obtain such relief currently as part and parcel of the s198D process
- And, one of the more important issues: the rules regulating reinstatement / re-employment as the appropriate remedy, the burden of proof so applicable and the elements that the ‘test’ in this regard have to comply with
Employer-employee-specific workplace material to be provided to the SALLR facilitator before the workshop and to be considered during the workshop
Sample employment contracts covering various categories of employees, such as permanent fulltime employees and scheduled employees, appropriate policies, practices and procedures, forms currently used and appropriate collective agreements.
Approach to be adopted during the workshop
The workshop will commence with an analysis of the current approach adopted at your workplace, followed by an audit to determine the level of your non-compliance with the new requirements. Thereafter, a joint action plan will be developed to give effect to the issues identified in the audit – lastly, and most importantly, at the end of the workshop you must be in a position to initiate what is required of you to implement the action plan to ensure the required compliance levels.
