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CCMA gets to work on sexism and racism
Dewald van Rensburg @City_Press1 February 2015 South Africans have been given a bigger stick to take on bosses or colleagues for racism, sexism and unfair discrimination in the workplace – and it’s free.
Thanks to labour law amendments made last year, the Commission for Conciliation, Mediation and Arbitration (CCMA) has replaced the labour court as the default arbiter in discrimination complaints for most workers.
Until now, the right to equality at work has been largely unenforceable, unless complainants have the money to pay lawyers to navigate their case through a court process.
The CCMA will also be the stage for entirely new kinds of labour disputes made possible by the amendments. These include judging when a worker hired by a labour broker is actually a “permanent” employee – and determining small unions’ rights to organise niche professions alongside.
To prepare for what is likely to be a massive increase in work, the National Treasury has given the CCMA R60 million, in addition to its allocated R607 million budget for this year.
Every year the discrimination cases that make it to the CCMA add up to less than 5% of its total workload.
“The reason we advocated for this [law change] is the small percentage of our caseload that deals with discrimination,” said CCMA director Nerine Kahn.
“Either there is no discrimination or cases are too costly,” Kahn told journalists this week. “That cannot be right.”
There are other factors that prevent people from laying discrimination charges, namely fear of rocking the boat or curtailing their career prospects, the “freezing out” effect.
Paul Benjamin, a leading labour law expert, told City Press that it was difficult to predict whether the amendments would make a massive difference to the enforcement of equality rights.
“The purpose is obviously to make it more accessible. It is very difficult for an individual or even an union to litigate. The labour court is complex and expensive. The majority of [discrimination] cases in court have, by and large, been more senior employees,” he noted.
Like Kahn, Benjamin doesn’t equate the low number of cases to a lack of discrimination.
“There is evidence that gender discrimination in wages happens a lot, but there are no cases. One difficulty is that people are reluctant to litigate while they are employed. That will probably continue. Being able to refer to the CCMA is not a cure for that. What you can say is that there will potentially be more cases,” Benjamin said.
Traditionally, unfair dismissal claims make up 85% of the CCMA’s work. Much of that can be categorised as frivolous claims because people who have already lost their jobs have little to lose, as the CCMA is free of charge.
“When people think about the CCMA, they think strikes and unfair dismissal.
“I would love it if 85% of cases were not unfair dismissals,” says Kahn.
The long-anticipated regulation of labour brokers – in effect from December – provides for labour broker workers to become permanent if they are in a position for longer than three months.
Determining whether someone is an employee of a company or an employee of a labour broker will fall to the CCMA.
Kahn expects “quite a lot” of these cases.
“They will probably come quite regularly until the law is settled.”
Benjamin also expects the labour brokering clause to lead to “a lot of cases”.
The way this new law will likely play out is that brokered workers will only challenge their status as temporary employees after being dismissed.
This could lead to benefit claims, which are normally due to permanent workers who have been dismissed.
Kahn has been the director of the CCMA since 2006. In that time the body’s caseload has doubled and its budget has tripled.
The institution is projected to grow its caseload from 144 000 cases in the past financial year to 207 000 two years from now.
Its workforce of full- and part-time commissioners will grow to about 800 by 2017, from 676 this year, and its budget will escalate to R788 million, from R608 million last year.
Kahn says the organisation’s role “gets broadened and broadened”, which she believes shows it has the trust of employers, labour and the state.
The legal trifecta for workers
After long negotiations at the National Economic Development and Labour Council (Nedlac), President Jacob Zuma last year signed off on amendments to South Africa’s three major labour laws.
First up, in August, was the
Employment Equity Act:
The CCMA has always been able to hear discrimination cases. It tries to make workers and bosses resolve the issue at conciliation.
Before the amendment, a failure to resolve at that stage could leave the complainant powerless to take it further. Theoretically, employers could refuse to admit wrongdoing with the knowledge that the worker probably did not have the means to take the issue further.
Now a failure to reconcile leads to an automatic arbitration instead of a theoretical right to the courts.
This only applies to people falling below the “low-earning” threshold, which is currently R205 000 per year.
That includes the majority of working South Africans.
This limitation does not apply to sexual harassment cases as everyone has access to the CCMA, instead of the labour court.
In September the Basic Conditions ofEmployment Act was amended, followed by the Labour Relations Act (LRA) in December.
Two significant changes to the LRA are the new rules limiting indefinite “temporary” employment through labour brokers.
For small unions, it also breaks with the tradition of majoritarianism by allowing the CCMA to judge if a small union represents a “significant interest” in a workplace.
Protecting your rights
The CCMA has illustrated how discrimination cases have played out, with a few case studies from the past five months.
»Blue Sapphire Internet Cafe in the Free State had to pay compensation of R55 000 to an employee who had left her new job. The owner had, within the first two days of hiring the complainant, made sexual advances and tried to kiss her, the CCMA found.
»A CCMA commissioner settled a sexual abuse case with a monetary agreement, legal fees and financial assistance for school after a manager forced a 16-year-old worker to have sex with him three times in the first three months of employment.
»An employer, Cape Scientific Service, had to pay R40 000 in compensation and provide a written apology to an employee after calling her a “bergie” and a “monkey”.
»Colin Bull, who worked at Fidelity Security Services, was fired for racially abusing co-workers. He challenged the dismissal and lost.
The commissioner said it would be unfair discrimination if the company had not acted against him.
The tricky nature of equal pay for “equal work” complaints is already clear.
»One of the first cases the CCMA received after the amendments involved a black assistant director alleging that his white colleagues earned more in the same position. He lost because the white people in question had different duties, more experience and higher qualifications. All of these are grounds for unequal pay under the law.