No employer wants to have to go before the Commission for Conciliation, Mediation, and Arbitration (CCMA). However, when this is necessary, the employer needs to ensure that they prepare themselves to be ready to go before the commissioner to present their case.
An employer may be represented in CCMA proceedings by any employee or director of the business or an official of an employer organization registered with the Department of Employment and Labour.
Except for arbitration, an employer is generally not allowed to be represented by a legal practitioner. However, the commissioner overseeing the resolution process can decide that it would be unreasonable for a party to handle the dispute without legal representation; or the commissioner and the parties to the dispute can agree to have legal representation.
When an employer is preparing to go to the CCMA, the best thing they can do is ensure that all their evidence is in order and that they are familiar with it. This means that they must have evidence that is relevant and helps their case, and is readily available to refer to when needed. This evidence can be in the form of photos, video or audio recordings, oral testimony, or documents.
Emails, WhatsApp messages, and other such electronic documentation or evidence should be printed beforehand and copies made available to all present during the CCMA process. With all of this evidence on hand and readily available, an employer will be better prepared to present their case clearly and coherently, with everyone being “on the same page”, so to speak.
Another important aspect is the choice and preparation of witnesses. An employer needs to ensure that the witnesses they intend relying upon are:
(a) available and willing;
(b) reliable and will assist rather than hurt their case; and
(c) prepared for possible questions which will be posed to them by the opposition.
As a general rule, if you are in doubt as to what a potential witness may say when under questioning, it is better to do without them. This is because the evidence they may give has the potential to hurt your case more than help it.
There is nothing prohibiting an employer from using the services of a legal practitioner in the preparation phase. In fact, this is advisable, especially in more complex cases where questions of law are to be decided upon and where witnesses need to be briefed and vetted for their suitability.
We at McCarthy & Associates Attorneys are well versed in both the procedural aspects of the CCMA processes and assisting employers in preparing their cases and their witnesses.