Monday, December 21, 2015
Calvin worked at a company for 10 years as a programmer. One day Calvin was called into the office of his manager, who then told him that the company was being downsized and thus he will be dismissed. Suing his employer for wrongful dismissal, the case was dragged on on numerous technicalities and a year later the matter was not yet resolved. Calvin was also running out of money and had to sell off some of his assets to survive.
After talking to a friend who just completed mediation training, Calvin asked his legal representative to discuss this option with his former employer. It was agreed upon and the case ended up before a mediator.
The mediation proceedings started early morning, around 9am, and one could cut the tension with a knife inside the room. After both parties stated their cases in a joint session, the mediator decided to break into the first individual session with Calvin. What transpired in this session with Calvin was an eye opener. The mediator immediately picked up what the underlying issue was for Calvin and asked whether Calvin would share some of this information with his former employer. Calvin agreed.
After the individual session with the employer, the mediator called both parties in for a joint session. It is at this session that Calvin was given the opportunity to share whatever he liked with his former employer.
Well, without going into the details, what transpired, stunned everyone. It was the first time that Calvin’s former employer saw and experienced the raw emotions that came pouring out. Calvin, an only child, lost his father at age 9. Tragically his mother was killed in a brutal incident when he was 18 and working part-time as a waiter. He had no other known relatives and lived with a friend when he got the job at the company. His co-workers soon became like family. So much so that he had always spent Christmas and other holidays with his co-workers. Calvin therefore literally saw the company and his co-workers as family. He felt hurt and betrayed by the lay-off.
After hearing what Calvin had to say, his previous employer was ultimately able to re-employ Calvin as a consultant. This allowed Calvin to start his own business and his former employer could still benefit from his services. The resolution was acceptable to both parties and today, Calvin own a thriving business, married and has a first-born on the way.
The relevance of this dispute is too say that if Calvin was not given the opportunity to express the emotional connection he felt with his former employer and tell his story whilst facing his old boss, the solution to a year long dispute would never have presented itself.
(*This is based on a factual dispute, but the names and certain facts were altered to protect the confidentiality of the parties involved)
Although not intentionally, it is common in labour disputes that cases are dragged out. Dismissed employees reach a point where they sometimes can no longer afford the costs involved in taking a case to the Labour or Labour Appeals court. With the high rate of unemployment in South Africa and the rate at which employees are dismissed, labour case mediation can definitely make a difference. Apart from the cost to employees, the same can be said for employers. Although it might not appear that way, the costs for both parties can be very high.
It is not to say that mediation can resolve all labour disputes, but considering how cases end up in Labour court, it is safe to say that mediation should at least be a consideration for both parties. This should even be considered before disciplinary action against employees or grievance actions against employers.
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