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  • Writer's pictureNerine Kahn

Reflections on the labour market a year after leaving the CCMA

In a world where reconciliation and mediation should be the order of the day, it appears that all parties have become more rigid in how they interpret and uphold South Africa’s advanced – and conciliation focused – Labour Laws…forgetting the “shades of grey” recognised in the process

It is a year since I left my role as CCMA Director. While I did take some time off to reflect on what my next odyssey would be, I have been building my new role/business for nearly a year now. This has given me significant opportunity to reflect on what is happening in the dispute resolution space, as well as the broader labour market, from the “other side” so to speak. Of course, it has also been a significant and interesting year in South Africa, which always has an impact on our labour market.

From my position as Director, I was of the view that process and dispute resolution (read “misconduct and incapacity processes”) had progressed significantly and that we were making some progress towards the higher level intent of the drafters of the current Labour Relations Act (mediation, progressive discipline, speedy meaningful interventions for individuals).

On the back of my experience over the last year and based on the honest concerns raised with me (from all sorts of stakeholders), I have come to the realisation that this progress I thought we had made is not necessarily as embedded as I had imagined. Below, you can read the first of three articles on what I have come to realise since leaving the CCMA.

What is obstructing dispute resolution, practically speaking?

To a great extent from what I have seen, the stumbling blocks hinge around these three issues:

1. It appears that ethics have taken a back seat…

I have been surprised to observe the “churning” business of disciplinary hearings that “guarantee dismissals” even if the facts don’t bear it by many independent specialist enterprises. And then there are the attempts to ensure minimal pay outs, where companies even renege on agreed payments, or resolution terms completely. This, of course, leaves an employee “on the street”, and almost never reinstated*. Further interrogation of this has led me to conclude that it is due to “client” demand, and the pressure on these aforementioned independent specialist enterprises to “deliver” on that demand to ensure client (employer) retention. I am left to conclude that in many instances there is a lack of courage (integrity) in giving professional advice. Everyone wants to be right, or win. With ethics seemingly becoming a secondary concern.

2. It has become about winning despite the cost thereof…

Clinging to formal, legalistic approaches, with reduced attempts at compromise, seem the order of the day. Not to mention the fact that there appears to be very little engagement by line management with the affected employee. The sole target seems to be to terminate the relationship, almost at any price, as opposed to finding compromise or workable solutions. In essence, workplace issues are dealt with as black or white, there are no shades of grey. (This is something which I have discussed at length in my three-part blog series focused on Collective Bargaining. You can find these and other articles here:

3. Extensive rule making leaves little room for interpretation

Together with the “extreme” legalisation comes the endless rules and policies that are generated to cover each and every eventuality in work places. While this may be understandable given the swing towards legalism and strict procedural interpretation, commissioners and courts seem to be encouraging. It in turn, causes confusion and almost guarantees a litany of employee offences (while it also increases employee relations costs). Not to mention the fact that it is setting up endless arguments on consistency and leaves no room for a purposive (literal or exception based approach) interpretation.

All of this doesn’t make content and stable workplaces.

These stumbling blocks detract from the basic principles of sound employee relations of:

  1. ongoing dialogue,

  2. investing in growing employment relationships (through engagement, training and development),

  3. creating evolved workplaces, and

  4. social justice,

All of these are, in my view, an essential ingredient in creating passionate and productive workplaces.

While the buzzword is transformation and BBEEE, there is minimal focus on employment equity trials other than the standard compliance adherence, (and we all know there are many).

In some of the work that I have done over the last year, I have been able to constructively rely on my knowledge and experience to support employers and employees in addressing these aspects. To do this, I have walked them through more constructive, less antagonistic ways of dealing with workplace difficulties, and hence created lasting effective and satisfying outcomes for everyone, with reduced ongoing challenges. In so doing focusing on exactly these “grey areas” in workplace issues that seem to have fallen by the wayside. It requires greater commitment, and proactive management, but it has a stabilising and productivity enhancing consequence.

Keep an eye out for the second and third article in this three-part series on my reflections on a year outside of the CCMA over the next couple of weeks.

*CCMA while it is enjoined by the LRA to ensure reinstatement achieves at best 15% reinstatement in all cases.

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