If you are reading this, you may already have attended a Disciplinary or Grievance hearing in your workplace; in which case you have some exposure into Employment Law already. Not that your boss’s office is a court of law, but those proceedings hopefully share the same basic values you find in an actual court–fairness, hearing both parties, treating everyone impartially and so on. Your company’s procedures will also have been drafted with one eye on the fact that the matter may end up in a real courtroom.
The first and probably most important thing you need to know is that employment law does not share the purely the adversarial nature of, say, company or criminal law. It is more similar to Family law in that it recognises that there are relationships involved here that go deeper than the contract, and that sometimes the letter of the law must sometime defer to those relationships. After all, the parties may often go back to working together once the legal processes have been completed. Remember, there are many reasons to apply to the CCMA other than just unfair dismissal.
Rather than the usual court outcome where one party wins and the other party loses, employment law aims to resolve differences, hopefully to the benefit of both parties. The law will encourage the parties to reach an agreement between themselves first. Only after that has failed will it step in and make a judgement.
It recognises that the parties are often not equal – the employer has many more resources than the employee does – and will offer a guiding and supportive hand to the employee. It also places more of the burden of evidence on the employer.
That’s why your first port of call is the CCMA – The Commission for Conciliation, Mediation and Arbitration. Many people are surprised to find themselves not in a courtroom, but in an office in a government building. We’re not completely in a courtroom yet, but we’re definitely one step closer. There might be lawyers present this time.
As mentioned, the Commissioner will expend a lot of effort to facilitate an agreement between the two parties – Conciliation. I am always impressed by the dedication of the Commissioner to seeking mutual agreement in the face of parties spitting and growling at each other. In some cases, the parties cannot even talk to each other, and the Commissioner will don his or her Mediation hat and talk to the parties separately in an effort to bring them closer.
Once these avenues have failed, the commissioner will move to the third part of their role – Arbitration. This part of the proceedings will begin to look more like what we lay people recognise as legal mode – making judgements. The Commissioner will usually set a new date for the parties to come back and present their cases for Arbitration, after which he or she will make a decision. That decision now has the power of a legal judgement behind it, although naturally there are a variety of appeal processes which will finally find their way into an actual courtroom.
Let’s hope this article is the closest you find yourself to one.