Commission for Conciliation, Mediation & Arbitration: Challenges in administration: Briefings by Society for Part-time Commissioners, labour law practitioners & former employee

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Employment and Labour

09 August 2010
Chairperson: Mr E Nyekembe (ANC)
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Meeting Summary

The Committee was briefed by the Society for Part-time Commissioners & Labour Law Practitioners (SPC & LLP) and Mr Mothibedi Mokoena, a former employee of the Commission for Conciliation, Mediation and Arbitration (CCMA), who highlighted various administrative problems with the CCMA.

The SPC & LLP raised grievances about the way in which commissioners were treated under the administrative set-up of the CCMA. They were appointed on renewable contracts, but had been subject to subject to victimisation and unfair treatment if they made judgments that were unfavourable towards employers. This climate of fear led to the erosion of the independence of the commissioners and thus of the CCMA as a whole. The process of renewal had in the past been used to eliminate ‘problematic’ commissioners, and the Governing Body of the CCMA did not meet with commissioners to discuss issues, nor to listen to their problems. SPC & LLP suggested that the system of contracts be changed, that a process similar to appointment of judges be used, and that a regulatory body be established. It also highlighted that commissioners were unable to make certain decisions independently.

Mr Mothibedi Mokoena, formerly a training officer in CCMA, outlined his own situation and that of his colleague Mr Nelson Reddy, formerly an internal auditor. Both had become aware of financial irregularities in the CCMA, had “blown the whistle” to the Department of Labour, and, when this had been discovered, were victimised, suspended, had 49 charges brought against them, and were subsequently unfairly dismissed. Although he had been advised that he would receive a copy of the forensic audit report, commissioned by Department of Labour, this had not been made public as yet. He also highlighted that the disciplinary panel had run up costs of R1 million, despite the fact that his conduct fell under the Protected Disclosures Act, and had insisted on proceeding with the disciplinary matter before the forensic report was ready.

Members appreciated the reports, but said that it was difficult for the Committee to deal with the matter without also hearing from the Department of Labour and the CCMA’s governing body. The Chairperson explained that although the report was ready, it was embargoed until it had been tabled before Parliament, which would happen on the following day. Other Members suggested that the Committee should meet with all relevant parties and establish the veracity of the allegations. They also indicated that the Committee was not a court. Members asked for clarity whether part-time commissioners wished to be appointed full-time. A Member suggested that SPC & LLP’s grievances may require amendment of the Labour Relations Act, which was likely to be a more protracted process.


Meeting report

Commission for Conciliation, Mediation and Arbitration (CCMA): Administrative challenges: Society for Part-time Commissioners & Labour Law Practitioners (SPC & LLP) briefing
Mr Sipho Dlamini, Secretary General, Society for Part-time Commissioners and Labour Law Practitioners, stated that the Commission for Conciliation, Mediation and Arbitration (CCMA) faced many challenges. CCMA commissioners were not adequately protected in order to discharge their responsibilities, could not take decisions independently because of the way the administration worked, and were not functioning as originally intended. Commissioners were treated as part of the administration, and were not allowed to sit with parties. They also had no power to decide on postponements of cases, but needed to find a Senior Commissioner to get approval for such decisions.

As a result, the commissioners, and therefore the CCMA, were not as independent as Parliament had intended. Employers had a way of influencing administration through Industrial Bargaining Councils (BCs) and tended to ask that a different commissioner be assigned to the case if they felt that the current commissioner was being unfavourable. This amounted to commissioners being blacklisted. Commissioners should not have to fear unhappy employers. Because they had, inadvertently, been regarded as administrators, they were subject to bureaucratic interference, to overt and covert abuse through blacklisting by the administration and other parties, and this led to fears of loss of income and victimisation, which in turn led them to be highly vulnerable to corruption.

Mr Dlamini suggested that, in order to correct this situation, Parliament needed to take an active interest in protecting and enhancing the office of CCMA commissioner. To date, Commissioners had not been able to engage properly with the CCMA Governing Body (GB), were intimidated by it, and felt that they only had the opportunity to engage when their contracts came up for renewal. There was a need to ensure that the GB met with and actively sought to understand the challenges faced by commissioners, as opposed to the current position, where it became a trial-by-ambush structure. By the time the GB came to commissioners they were inevitably tainted by misinformation from management and the bureaucracy. The GB was not an extension of management. Mr Dlamini suggested that, as soon as practically possible, the GB should invite at least three commissioners to attend interviews, and that those commissioners should be allowed at least to give input, even if they had no decision making powers. This culture should be cascaded down to the secretaries or executives of the BCs. He called on Parliament to create a structure separate from the CCMA, and not accountable to the GB, for the purposes of regulating conduct, recruitment and remuneration of commissioners. Commissioners should be entitled to a professional body similar to the Judicial Services Commission. He added that currently, commissioners were appointed on three-year contracts, after which they were “hauled to a trial-by-ambush” by the GB. Their counterparts in other countries, including Australia, had permanent contracts. The three year renewals made commissioners wary of making decisions that were unpopular.

Mr Steven Mabalane, President, SPC & LLP, stated that the CCMA was the most important institution to come out of the Constitution as it allowed employees to seek justice. If the independence of the commissioners was eroded, this presented a serious challenge. It could not be overemphasised that the renewal of contracts was currently used as a process to remove those commissioners who were viewed as problematic by management. It was very important that the independence of the commissioners be protected. Stemming from this, the conversion of fixed term contracts to permanent employment would facilitate the dispensation of justice according to the legislation. He cited that in one case, the presiding officer had found in favour of the employer, despite the fact that there had been unfair dismissal of 287 mineworkers. This case was subsequently taken to the Labour Court after the failure of the CCMA to pronounce fairly.

Presentation by Mr Mothibedi Mokoena
Mr Mothibedi Mokoena, Commission Staff Association (CSA), stated that he was formerly a training officer in the CCMA before he was unlawfully dismissed. He was also making representations on behalf of the former CCMA internal auditor Mr Nelson Reddy. Both had been dismissed as a result of blowing the whistle on financial irregularities. On 1 October 2009 Mr Mokoena had called the Mr Jimmy Manyi, Director General of the Department of Labour (DoL), and informed him of financial irregularities within the CCMA. Mr Manyi had suggested that the relevant information be e-mailed to him. Mr Mokoena and Mr Reddy had set up a separate e-mail address to prevent the CCMA from discovering what they were doing, but when the CCMA discovered that they had been the whistle-blowers, they were dismissed. The Chairperson of the Adjudication Committee, Mr Nelson Govender, had made open threats that anyone making similar reports would be “dealt with”.

Mr Mokoena noted that the information about the irregularities had been furnished to the Office of the Auditor-General (AG) and Deloitte & Touche. The matter had been seriously under-reported in the CCMA’s Annual Report. A second disclosure was then made in October 2009, since the reports in May 2009 had not been acted upon sufficiently. He outlined that although deductions were made from Mr Mokoena’s salary in respect of PAYE and the Employee’s Provident Fund, the moneys were not paid over to the relevant institutions. This had been brought to his attention by the pay-roll administrator. When Mr Mokoena challenged the Chief Financial Officer on this, he was informed that the CCMA was performing a pay-roll reconciliation in August 2009, which was the reason the funds were not paid over. The pay-roll administrator had subsequently shown Deloitte & Touche that this was not the case. After she had done so, she found that all work was being diverted from her, was victimised, suspended and finally dismissed. On 2 October 2009 Mr Mokoena was issued with a precautionary suspension letter. The team doing the forensic audit had assured him that he would get a copy of their report. Although that team advised him that the report had been discussed with CCMA in January 2010, and that the matter had been concluded in April 2010, the report had still not been made public.

Mr Mokoena was very concerned that he and Mr Reddy had been victimised and dismissed for acting correctly. Both individuals also were falsely accused of making racist comments and threats of violence. Together they faced 49 charges. For the period from suspension to dismissal of the two, CCMA’s disciplinary panel, chaired by Mr Yunus Shaik, had spent R1 million, despite being fully aware of the Protected Disclosures Act of 2000, and despite the fact that the main charge resulted directly from the whistle-blowing. Mr Mokoena and Mr Reddy had asked the disciplinary panel to wait for the forensic report and evaluate the evidence before making their judgment, but the panel had refused. The President of the Commission Staff Association (CSA), the trade union to which both belonged to, was also charged for attending their disciplinary hearing. After the forensic audit was concluded the pay-roll administrator was fired, but she had opted to reach a settlement. Mr Mokoena had then approached Mr Manyi. Mr Mokoena entreated Members to apply their minds to the forensic report, in order to prevent the CCMA continuing to abuse public funds.

Discussion
The Chairperson thanked both presenters for their detailed reports and complaints. She noted that part of the Committee’s oversight function entailed listening to complaints from DoL entities was part of their oversight role.

The Chairperson noted that the CCMA GB members were not present. Some of the issues raised may be raised in the forensic audit report, and some questions might be difficult to answer at this stage. Until release of the forensic report, she would be willing to accept any response from the DoL, although the Committee could not demand a response until the DoL had been given the opportunity to examine the report and determine the veracity of the allegations.

Mr I Ollis (DA) said that there were a lot of complex legal problems raised. The Committee, in the absence of a report from DoL and the CCMA’s GB and management was in a difficult position. He agreed that the Committee could not decide on the truth of the matters raised at this stage.

The Chairperson reminded Mr Ollis that he had the right to make a proposal if he wished. Although the people who would need to answer the allegations were not present at this meeting, the Committee could not prevent anyone from reporting a matter to it.

Mr Ollis proposed that Members should consider adjourning this meeting, and calling another meeting later, at which DoL and CCMA should be present and questions could be put to them, after which all parties could be called to a further meeting with the Committee.

Mr E Nyekembe (ANC) agreed with Mr Ollis’ proposal.

Mr Nyekembe thanked the presenters for their input, but asked for clarity on what the SPC & LLP were asking the Committee to do. There seemed to be two types of contracts for commissioners - full-time contracts, and renewable three year part-time contracts, and asked whether the part-time commissioners were asking to be full-time employees of the CCMA. If they wanted to be considered permanent employees while working part-time, then there was a problem. The GB of the CCMA was constituted in terms of the Labour Relations Act (LRA) and consisted of the three spheres of State, organised labour and organised business, by way of the
National Economic Development and Labour Council (NEDLAC). Bargaining councils similarly drew on organised labour. He asked whether the SPC & LLP was a registered trade union, commenting that if this was so, then the matter became easier. He asked if there was a desire that the LRA be amended.

Mr Nyekembe noted that Mr Mokoena was one of his constituents, and had been called in to the constituency office. When the CCMA had given its report, as a public entity, to the Committee, Mr Nyekembe had raised Mr Mokoena’s issue and had asked when feedback would be provided to the Committee. He thought it was important to get the forensic report.

The Chairperson said that she had not forgotten that the Committee had not yet received a response from the DoL. On the basis of what Mr Mokoena reported, the Committee had asked the DoL to do a forensic report. She had received the report last Thursday and it would be tabled before Parliament on 11 August. This had not been an easy process and she had to use the resources of Parliament to determine whether the Committee was entitled to the report. The Committee should have received the report at the same time as it was given to the National Treasury and the Executive. She had not yet shared the report with the Committee because there were strict instructions that the report must be embargoed until it was tabled in Parliament. She was not sure that this was correct. However, she assured Mr Mokoena that the Committee would be dealing with the matter fully.

Mr Ollis stated that the Members had only received the documents in support of the presentation on that morning, and it was difficult for Members immediately to determine what was going on. There was clearly a problem, but this Committee was not a court. He asked how many of the people present had been subject to disciplinary hearings and asked whether they had approached the GB and leadership of the CCMA with their grievances. He added that Mr Dlamini’s grievance related to the terms of reference of employment. Members of Parliament (MPs) were also on renewable contracts and were essentially evaluated every five years.

The Chairperson said that Mr Ollis was speaking only for the DA. The ANC subjected its MPs to continuous assessment and they were evaluated every quarter.

Ms L Makhubela-Mashele (ANC) repeated the earlier question whether the part-time commissioners wished to be employed full-time.

Mr Dlamini firstly indicated, in response to Mr Nyekembe, that The SPC & LLP was not a union but a professional society of labour law practitioners. He agreed that the BC was a tripartite entity and a creature of statute. He added that if there were unions in a BC it did not mean that the unions “called the shots”. Representation was not the problem, but instead the problem was one around the bureaucracy.

Mr Dlamini said that he and Mr Mabalane were full-time commissioners. Adv Moletsane was a part-time commissioner and a practising advocate. The reference to a fixed term contract did not necessarily mean full-time employment. The part-time commissioners did not wish to be full-time commissioners.

Mr Dlamini noted that representatives from the Department of Labour were present. To their credit, assistance was given by the Department as soon as a letter had been addressed to Mr Manyi. He noted that concerns had been expressed about the veracity of the allegations and invited the Committee to initiate an investigation in order to determine this.

Mr Mabalane, Commissioner, CCMA, said that commissioners dispensed justice in a manner similar to judges and that the circumstances around the renewal of their contracts eroded their independence. This was the reason that they had proposed taking a similar route to the judiciary.

Adv Russell Moletsane, part-time Commissioner, CCMA, said there was a distinction between full-time and part-time commissioners and that the full-time had a union which was the CSA.

The Chairperson stated that Mr Mokoena’s had gone into some detail on the matter, but she would like him to respond on whether he had approached the CCMA’s GB. She added that the whistle-blower hotline had been opened precisely to avoid the victimisation that he was describing, but it seemed that he had gone through a very difficult time as a result of blowing the whistle on mis-management. The Committee needed to get hold of the Auditor-General’s forensic report and verify Mr Mokoena’s allegations.

Mr Mokoena stated that he had not approached the CCMA, as it was the very perpetrator of what he was disclosing. He said that he had experience of how management operated and that some of the financial irregularities concerned contracts that the GB itself had approved. It would have made no sense to approach either management or the GB. The CCMA conducted its own investigation, which was completely one-sided, and did not even ask him to explain his allegations.

Mr Nyekembe noted that Constitutional principles must be expanded upon by Parliament. The presentations seemed to indicate that Chapter 7 of the LRA may need to be amended. This was unlikely to be a quick process, and any amendments would not be retrospective. He noted that Mr Mokoena had indicated that he was unfairly dismissed, and that Mr Ollis had made the point that this Committee was not a court. However, the Committee had been made aware of wrongdoing and noted that the forensic report was produced as a result of Mr Mokoena’s actions.  

The Chairperson reminded Members that the forensic report would be available on the following day, and said that it would be necessary to engage with all parties to take the matter forward.

The meeting was adjourned.


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