he Tokiso Review, conducted by the largest private labour mediation service in the country, Tokiso Dispute Settlement, found that the percentage of default judgements issued against employers has shot up to 32% of all judgements issued by the Commission for Conciliation, Mediation and Arbitration (CCMA), the country's main labour dispute tribunal, together with bargaining council tribunals and private mediation services. This is up from an average of 22% over the previous three years, says Tokiso CEO Tanya Venter.
Default judgements are issued when an employer does not pitch up to answer a claim of unfair treatment from a disgruntled employee. The researchers are unsure of the exact cause of the increase, but describe the trend as "disturbing" and call for "an urgent intervention, be it legislative or structural, to address this disregard of the labour laws".
Venter reckons the main reason is the fact that employers have learnt that by ignoring the system, chances are good that a complaint will simply go away. Getting a difficult employer to comply is a daunting task for a worker. For example, the employee first lays a complaint at the CCMA. The employer doesn't pitch up, and the tribunal orders the employer to pay the worker compensation. If the employer doesn't pay, the worker has to submit a "Section 143 application" to the director of the CCMA so that the award can be certified as an order of the court.
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This involves compiling affidavits, among other things. If the employer still refuses to pay, the worker has to approach the Labour Court for a writ of execution against the employer. There is a "huge backlog" at the Labour Court, and a worker can easily wait for six months to get the writ, only to find that, when he takes the writ to the sheriff, he has to pay a deposit of R1 000 before the sheriff will move to attach the goods of the employer. By this time, many workers will have given up in despair
"There's a huge, huge problem with enforcement of awards that is looming over our system," says Venter. It is ironic that employers seem to be turning their backs on the system just at the time that significant improvements are taking place in the CCMA, which handles 75% of all labour disputes in South Africa.
The average dispute is dealt with within two months, an improvement from previous years when it used to take four to six months. Also, to the advantage of employers, "the tide has turned with the over-proceduralism that was evident in awards a couple of years ago", says the review.
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