News
on the new CCMA “Guidelines for Misconduct Arbitrations”
CCMA guidelines for misconduct
arbitrations at advanced stage of development. The CCMA is
in the process of finalising guidelines for misconduct
arbitrations. The guidelines were put together by a drafting
team formed about 18 months ago comprising of senior labour
law practitioners and senior commissioners. The object of
the guidelines is to ensure that arbitrators issue
consistent awards on dismissals involving misconduct.
The issues that the guidelines seek to
address include:
-
how an arbitrator should conduct
the proceedings;
-
the valuation of evidence for the
purpose of making an award;
-
assessing the procedural fairness
of a dismissal;
-
assessing the substantive fairness
of a dismissal; and
-
determining the remedy for an
unfair dismissal.
The guidelines when finalised will be
published in the Government Gazette. Thereafter the CCMA
will spend a few months training commissioners and once the
training is complete, will create public awareness of the
guidelines. The CCMA aims to implement the guidelines by
April 2010. The guidelines are going to be peremptory in
that the arbitrators will have to take them into account and
will have to provide an explanation if they deviate. It
seems that they will become a useful tool in guiding
employers on what they need to present to commissioners at
arbitration. We will keep our members updated once the
guidelines have been finalised.
Other expected changes to employment
legislation include changes to provisions on Labour Brokers
which would necessitate changes to the Labour Relations Act,
Basic Conditions of Employment Act, Health and Safety
legislation etc.
Workmen’s compensation – claim against
employer
Skorbinski v Bezuidenhout t/a DB Transport
2009 (5) SA 461 (ECP)
Facts: Skorbinski injured his hand
while at work and sued Bezuidenhout, his employer.
Bezuidenhout excepted to the particulars of claim on the
basis that Skorbinski was prevented from suing his employer
in terms of s35(1) of the Compensation for Occupational
Injuries and Diseases Act, 1993. Skorbinski argued that his
claim was in delict and fell outside the ambit of the Act.
Held: Skorbinski’s hand injury was an
occupational injury in terms of the Act. Bezuidenhout’s
delay in reporting the incident to the Commissioner did not
assist Skorbinski, as he was also empowered to report the
incident. The delay did not transform Skorbinski’s action
into a delictual claim. The court upheld the exception.
Comment: In Jooste v Score Supermarket
Trading (Pty) Ltd 1999 (2) SA 1 (CC) the Constitutional
Court held that it was constitutionally acceptable that
employees must claim against the Compensation Commissioner.
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