Making unsupported allegations of unfairness against employers can be costly. This is partly because the CCMA, Labour Court, Labour Appeal Court and bargaining councils deal with approximately180 000 cases per year and do not have time to waste on dealing with false claims. The majority of these cases are referred by employees and deal with issues relating to:-
• dismissal for misconduct, poor performance, illness/injury or incompatibility
• provision of benefits
• takeovers and mergers
• whistle blowing
• sexual harassment
• mutual interest dismissals
• victimization due to the exercising of legal or organizational rights
The majority of these cases contain employee allegations that are backed up, to one extent or another, by facts. On the other hand there are a significant number of dispute referrals that appear to be based on fabrication. I suspect this to be the case for a number of reasons:-
• Firstly, employees lose approximately 40% of cases referred to CCMA arbitration. I accept that many of these cases have been lost due to poor provision of evidence by the employee rather than due to the fact that the allegations are false. However, at least some of these cases brought by employees will have been lost due to the complete lack of truth.
• Secondly, it is easy for employees to refer disputes to the CCMA and to most other dispute resolution bodies. The referral process is simple and free of cost. Employees are allowed to refer cases and to present their cases at conciliation, arbitration and at court on their own. They neither have to go to the expense of paying CCMA fees nor of hiring lawyers to assist them. This makes it tempting for dishonest employees to abuse the system in order to make some money.
• Thirdly, there are important motives for the bringing of false claims against employers. There may be employees (hopefully in the small minority) who bring cases against employers due to vindictiveness based on some unrelated matter or because they would rather extort money out of employers at the CCMA then earn their money honestly. I have been involved in assisting employers with cases where the employee simply refers a case to CCMA or bargaining council as a means of evading discipline. This is a strategy where attack is the best defense.
Not only is such a practice dishonest but it is also a waste of the CCMA’s and the employer’s time and resources. It is therefore not surprising that the law provides for employees to be penalized for bringing frivolous or vexatious cases. Frivolous means trivial or insignificant. Vexatious means annoying and groundless. In such cases the employee can be ordered to pay part of the employer’s legal costs.
For example, in Simane vs Coca-Cola Furtune vs (2006, 10 BALR 1044) the CCMA agreed that the employee had been guilty of dishonesty. As he had lodged a case for unfair dismissal knowing that it was not genuine the CCMA awarded costs against him.
In Ndwalane vs The Magic Company (Pty) Ltd (2006, 5 BALR 497) the employee was employed on the basis of a fixed term contract. When it expired and he was told to go he lodged an unfair labour practice case against the employer. However, he brought no proof of unfairness and the arbitrator found his case to have been frivolous and vexatious. He was ordered to pay part of the costs to of the employer.
While employees must beware of misusing the dispute resolution process employers need to exercise caution as well. That is, employers should:
• Make sure that they do not give employees cause to take them to the CCMA or other dispute forum
• Avoid jumping to the conclusion that the employee’s case will be found to be fabricated, frivolous or vexatious. That is, employers must not become complacent even when they feel sure that the employee’s allegations are false. The employer still needs to prepare and present a solid case to prove the falsity of the employee’s claims
• Obtain advice from a reputable labour law expert in investigating and assessing the employee’s allegations and in preparing for the arbitration hearing.
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BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: firstname.lastname@example.org. Go to: www.labourlawadvice.co.za. This article first appeared in The Star.