THE EMPLOYER, CCMA AND CONFLICT
This is a brief look at some conflict resolution principles that may be of practical value to the employer when faced with a CCMA (or Bargaining Council) application as respondent. Being of this specific focus, it should accordingly not be seen as advice on either substantive law or the general procedures inherent in such an application, and readers should get suitably qualified advice on those aspects of such an application where necessary. We have elsewhere on Conflict Conversations discussed the reasons and methods for preventing or minimizing such an application from happening in the first place, as such an application can have very harmful results in the workplace, ranging from the costs expended, adverse awards, time spent in opposing such an application, reputational risk, motivation and skills retention risks and much more. But, of course, there are times when such applications will happen and should be opposed.
Let’s look at a few conflict resolution principles that can increase your odds of succeeding in this encounter. The advice discussed here is designed to be in the employer’s best interests, even though it may appear to be neutral or accommodating of the applicant at times.
These CCMA applications are far too often approached as grudge projects that need to be disposed of as quickly and cheaply as possible. While there is some truth in that approach, a hurried approach often leads to an unprepared respondent, and this simple proverbial first domino often puts you in a terrible strategic position right from the start. So try to swallow that resentment and feeling of being the victim, and do as much preparation as is possible. Assess the facts of the dispute, see how accurate your evidence is, speak to witnesses again, go through the preceding record of events (often an internal disciplinary hearing record) with a fine tooth comb in trying to get ahead of the events at the CCMA. It is one thing to present and obtain a favourable result at an internal hearing, and quite another to do so at the CCMA. Ensure that you have access to the documentation that your case / defence may rely on and that this is safely stored. If that has not been done as yet, transcribe any audio recordings that you may have of the process up to there, either for your own team’s preparation or for use at the CCMA itself. Distinguish between evidence that may have been acceptable or accepted in the internal processes, such as hearsay, and continue to assess the strength or weakness of your case for purposes of the CCMA as you continue to prepare. Get this done as soon as you receive the first CCMA notice of the dispute. Ensure that those people who will have an active role in the hearing(s) are aware of their roles (eg as witnesses, presenters, researchers etc), empowered to give effect to their roles and fully and timeously prepared. A handy old saying we used during university days reminded us that “Proper Preparation Prevents Poor Performance”.
Your original views of the dispute may become more complicated once the costs, irritation and insults start escalating. Have a cold and unemotional look at your position early on, be clear on the general boundaries of your strengths and weaknesses, what you wish to achieve with this dispute, costs and budgets involved and assess your best alternative to a negotiated settlement (BATNA)early. If the matter is not settled on some basis, what are your risks, and does that perceived victory really hold all the benefits that you believe it does. Be realistic at this early stage, as walking back unrealistic expectations later on can be very difficult. Return to these original thoughts when the emotions and tempers start to rise. Make wise use of any pre-hearing negotiation opportunities, whether informal with the applicant or her representative or formal, say at a pre-arbitration hearing as may be scheduled. Schedule one yourself if this has not been done.
Even now an inordinate number of South African employers approach trade unions as enemies, organizations to be feared or fought tooth and nail. There are several reasons why this strategy is outdated and quite harmful. Understand that it is often an explicit strategy by such union opponent to get you emotionally invested, angry and off balance. This ever so often leads to a series of strategical errors made by the employer, and the employer is often then, with the assistance of the employer, painted as unreasonable and combative. This has obvious adverse consequences for the presentation of the rest of your case. Learn to understand the strategy, and counter it with a measured and calm response. Get in the habit of recording meetings, timeframes and undertakings in writing, remain constructive and refuse to be side-tracked.
Where strategically necessary ensure that you timeously file your objection to the combined conciliation / arbitration process. Doing both of these (conciliation and arbitration) on the same day can be very disadvantageous in complex matters. While the conciliation process is nearly without exception seen as a waste of time by employers, often attended by juniors (if attended at all) simply to tick the procedural box, our advice is to make use of this opportunity to sincerely attempt resolution, or then at the very least use it as a fact-gathering exercise while not giving away too much of your own strategy. Conciliation is often the last opportunity to speak to the opponent in a relatively civil manner before the resentment, fear and anger start to play a role, and the skilled employer, far from dismissing conciliation as a nuisance, makes use of this to either end the dispute or to further prepare for the pending arbitration. At this phase address and correct perceptions with the applicant, and bring creative solutions to the table that one last time may not require a finding as to who was right and who was wrong in the dispute thus far. Remember your BATNA.
In any conflict it is crucial to accurately assess the real cause(s) and triggers of the conflict. The application may refer to an unfair dismissal, but the real underlying cause driving the dispute may be a fear of not finding re-employment, a reaction to real or perceived racism in the workplace and so on. You will be involved in a very unproductive opposition until such time as you correctly understand what this is really about. You cannot resolve that which you do not understand. In order to do so, ask the right questions of the applicant at conciliation or during any negotiations, interview his colleagues at work, do the preparation we referred to above. Understand not just what is said and done, but what is not said and done. Take a cold look at your own biases and assumptions.
Whether it is in trying to persuade the applicant or the commissioner, you will need to effectively understand and apply the crucial difference between factual arguments and value based arguments. The tools to be used in such persuasion are different in each instance, and getting this wrong means that you start working against yourself and entrenching the other party in their views. We have written extensively on this complex but most important distinction in the Conflict Conversations blog (see eg the Difficult Conversations series).
Conflict management teaches us the value of a bird’s-eye view of a conflict. Parties often lose sight of important influences and role-players that may not be in the direct line of sight during the conflict itself. Factor these dynamics into your strategy by considering and dealing with the influence of the applicant’s spouse or union, their chances of re-employment, their cash-flow reserves and how long they have left to continue the battle, your specific commissioner and her approach to disputes like yours, perceptions about your company or the factual framework of your specific dispute, actual or potential media coverage involved in the dispute, the impact of a victory or a settlement on important people on your side of the proverbial fence, such as shareholders, investors or clients and so on. As far as possible, speak to the decision makers directly. This requires a creative, long-term perspective. If you are struggling to see that bigger picture obtain the advice of a professional, or ask a knowledgeable colleague or friend to advise you on these important considerations. See that these assessments are done regularly and timeously.
Throughout the application, but especially if you are considering the possibility of a future series of negotiations and a possible settlement, remember to allow your opposition the opportunity of saving face, especially if you are getting the better portion of the settlement. Conflict research and practice show empirically that people are prepared to take higher risks and even continue with processes that are harmful to them if they perceive an opponent as receiving an (to them) unfair advantage or if so continuing will hopefully allow them to save face. Ours is still, in many respects, an honour and reputation based society, and this becomes a crucial consideration in successful dispute resolution. This is the more so if we have unions, communities and social / political leaders involved. So if you want to improve your chances of a successful resolution, be careful with the bridges that you burn. Allow your opponent room to leave the dispute with some dignity retained.
Do some dress-rehearsals with your actual evidence, yours and all important witnesses. Spend some time with experts to study the non-verbal impact of such evidence, how that fits in with your overall strategies. Make your witnesses comfortable with the process, sequence, the document bundles and any other specific aspect of their evidence. The day of your arbitration hearing is a terrible place and time to make mistakes. Ensure that your case is presented through the correct lenses and correct this where necessary – are we at arbitration because of the employer’s intransigent stubbornness in refusing the employees a living wage, or are we there to keep the business viable in the best interests of all concerned.
Conflict is of course an inevitable part of life, the more so in the modern workplace. The question is therefore not how we avoid or prevent conflict, but how we make use of that energy to further our best interests. We do not need less conflicts, we need better conflicts. Make it your priority to become more conflict competent and more conflict confident.
(Andre Vlok can be contacted on andre@conflictresolutioncentre.co.za for any further information) Andre Vlok January 2022