The CCMA has done its best over the years to limit legal
representation in cases before it and thereby to 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.
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 to 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, 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!
Originally published - April, 2013.
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