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Tuesday, May 14, 2013 - 08:48
Mediation misfire

“The Commission for Conciliation, Mediation and Arbitration (CCMA) has done its best over the years to limit legal representation in cases before it and thereby limit legal costs orders in favour of successful parties, to the extent that in the last 15 years of practice I have yet to receive a costs order in favour of a client who has been successful in a matter,” says Dean Caro an Executive Consultant in the Employment Law Department at Garlicke & Bousfield Inc.


Now here’s the thing which I can’t quite get my head around: An employee is dismissed and refers a dispute to the CCMA. An arbitrator finds in his favour awarding him either re-instatement or compensation. “The company cries foul and takes the award on review to the Labour Court where it also requests costs against whichsoever party unsuccessfully opposes the matter.
“We know that neither the CCMA nor the arbitrators hardly ever oppose review applications and that it is only the employee who, in justifiably wishing to cling to his award, does so. To make matters worse, in order to oppose the review, he needs to engage an attorney to navigate his way around the court rules and to advance favourable submissions. In so doing, however, he runs the risk that if he is unsuccessful he may, in addition to his own legal costs, be saddled with the company’s legal costs!”
For if there was a mistake of fact or law, (or the new favourite one which I still don’t really understand - dialectical or process related error – which sounds more like an electrical fault relayed from outer space to earth), then surely any issue of costs arising from such a mistake should not be laid at the employee’s door, save for exceptional circumstances, none of which come to mind at this point. “After all,” says Caro, “even if an employee elected not to oppose a review application for fear of such a costs order against him, the company would nonetheless incur significant costs in prosecuting its review.”
But just because an employee chooses to exercise his constitutional right to oppose the application, resulting in an insubstantial extra charge to the company (the cost of perusing the employee’s answering affidavit and drafting a reply) the employee runs the risks of having to pay the company’s entire costs of any unsuccessful opposition. “It’s so unbelievable!”
 

Copyright © Insurance Times and Investments® Vol:26.5 1st May, 2013
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