Knowledge Mkhonto

Knowledge Mkhonto - Employment Lawyer February 2023 March 2023!

Labour Lawyers attorney in Johannesburg Labour Law specialists #employment law 

How does the South African dismissal process work? Once you are dismissed, the employee refers the matter to the CCMA (or bargaining council). Then the parties sit for conciliation (or con-arb). If there is no resolution, then the matter must be referred further to the Arbitration or the Labour Court (more complex issues). At arbitration, both parties testify to their versions & then after 14 days, the Commissioner issues an Award. Let us say the employee wins - what is the next step? Well, the employee needs to get the Award certified. You must obtain the CCMA7.18 form via the internet. The form is here here

You download the form, complete the Affidavit and get it commissioned. If you do not have the date upon which the CCMA served that Award on the employer, leave it out & let the CCMA fill it in. Once you have certified the Award, it is an order of the court and is valid for 30 years.

Simply put, Section 40 states that should a party fail to abide by the arbitration award, the other party must complete an LRA 7.18 form & submit it, together with a copy of the arbitration award, to the CCMA in order to have the arbitration award certified. Only after an arbitration award has been certified, may it be delivered to a Sheriff to proceed to execute the arbitration award on the "cheated" party's behalf. Once the Award is certified by the Director, it is ready for enforcement. Thereafter, the applicant becomes responsible for ensuring that the employer is served with a copy of the Award. Should the employer refuse to comply with the terms of the Award, the applicant is left to return to the CCMA. Failure by the employer to comply with the order results in the employer being in default and the next step is to have the Award certified in terms of s143(3).

Execution

In terms of general practice, the Sheriff will open an account for the applicant, who is expected to pay the Sheriff's costs. The Sheriff will then serve the employer with the writ of execution. The Sheriff will be instructed to attach movables and thereafter will compile a list of assets for possible attachment. The Sheriff must be specifically instructed to remove the assets discovered. It is possible that the employer may not cooperate with the Sheriff and seek to have the Award rescinded (in the case of a default Award) or reviewed. The LRA provides that an Arbitration Award issued by a Commissioner is final & binding where the Director has certified it. So to summarise – your next step is to complete the 7.18 forms and certify the Award. Next, you approach the CCMA to have an "Enforcement of award" issued and then you or the CCMA need to instruct the Sheriff to attend at the employer's place of business and have the Award certified. If you instruct the Sheriff, you pay – but it is not much – usually between R300-R500.

How we can help.

Once the award is certified by the director, it is ready for enforcement. Thereafter, the applicant becomes responsible for ensuring that the employer is served with a copy of the award. The employer is required to adhere to or comply with the terms of the award once served on him, depending on the nature of the award. In my experience, the employer seldom complies with the award, especially if it is a monetary one. This becomes a heavy burden to bear for an applicant appearing in person without any legal assistance. Should the employer refuse to comply with the terms of the award, the applicant is left to return to the CCMA. During this period, interest accrues in respect of the award in terms of s 143(2) of the LRA, as prescribed in terms of s 2 of the Prescribed Rate Act 55 of 1975. Failure by the employer to comply with the order results in the employer being in default, and the next step is to have the award certified in terms of s 143(3) (Griekwaland Wes Korporatiet v Sheriff Hartswater and Others In re Sheriff, Hartswater and Another v Monanda Landbou Dienste [2009] JOL 23720 (LC)).