Mediation in South Africa is effective in employment disputes both prior to litigation and at any stage during the litigation process, should the employee decide to file an action.
- Pre-litigation Mediation: A number of employment suits are initiated when employees do not feel respected or heard by their employer. The mediation process allows both sides to communicate and, with the assistance of a trained mediator, find solutions that benefit both employee and employer.
- Post-filing Mediation: Mediation has a high rate of success, and that is true as to employment mediations as well. It is hard to argue with success. Through mediation, participants can often find solutions not often available through going to court, such as rehire, transfers, structured payments of settlement offers, letters of recommendation, correcting of performance reviews and revoking of discipline.
If an employee complains of illegal discrimination, harassment or retaliation, it is best to resolve the matter internally. The alternative is that the employee can complain to the CCMA or another government agency, and/or file a litigation suit.
The operative question is: what is the best way to address a complaint internally? A company could let the human resources department investigate and address the matter. However, employees do not consider the human resource department to be neutral. Indeed, the human resource department is not neutral. Human resource employees are company employees, and they have a vested interest in siding on the side of the company, whether intentionally or subconsciously. Too often, the easiest solution seems to be to get rid of the trouble maker. Unfortunately, that often just leads to a new retaliation claim.
If a company immediately gets an attorney involved, the complaining employee will likely see that as an attack and will not respond well. The employee may feel he/she now has to retain an attorney as well, and conflict will not be as easily resolved.
One solution is to quickly hire a neutral investigator when an employee complains of illegal treatment. A good neutral investigator has relevant legal knowledge and conflict resolution skills. A neutral investigator will come to the company, interview the pertinent employees, review documentation and issue a detailed report with the investigator’s conclusions as to whether illegal activity took place. The investigator may also be able to propose resolutions to problems.
This report provides a win-win solution for the company:
- If a neutral investigator finds no illegal activity, the employee will still feel that the company took his/her complaints seriously. Because the investigator was neutral, there should be no concern for bias. If the employee nonetheless files a complaint, the company can show it responded quickly and appropriately.
- If a neutral investigator finds a problem, the company can correct the problem before the employee takes action that may damage the reputation and financial well being of the company.
Conflict Avoidance Workplace Training
Employers often repeat the same mistakes that result in complaints being filed or tribunal hearings.
Employers can reap huge benefits in learning how to address employee complaints before they turn into litigation by using trained mediators on how to mediate disputes and avoid going to any tribunal over employee complaints.