Tag Archives: constitution

CCMA amends Misconduct Arbitration guidelines, to be lawful, reasonable, and procedurally fair!

As of the beginning of this year, new regulations for conducting CCMA (Council for Conciliation, Mediation, and Arbitration) Misconduct Arbitration hearings are in force, but have not been well publicised.  The change to the regulations ruling CCMA Arbitration hearings is the first of a number of labour law changes planned for this year, including the Labour Relations Act, the Basic Conditions of Employment Act, and the Employment Equity Act.  The Misconduct Arbitration Guideline changes are designed to reduce the number of cases taken to the Labour Court on review.

About 80 % of CCMA cases relate to Misconduct, leading to claimed unfair dismissals against employers, wrote labour lawyer Tony Healy in the Weekend Argus. The amendments specify how misconduct arbitrations will now be conducted by CCMA commissioners.  Writing in The Skillsportal, labour lawyer Ivan Israelstam stated that the new guidelines have been designed to ‘promote consistent decision making in arbitrations dealing with dismissals for misconduct’.  He explained: “The LRA (Labour Relations Act) contains a large number of very big and crucial legal gaps. This fact, together with the fact that the concept of what is and is not ‘fair’ is heavily influenced by the views of each arbitrator, has historically rendered the labour law jungle an extremely dark, uncertain and dangerous place for employers to be. It is therefore high time that a document was put together to clear up these uncertainties. While the CCMA Guidelines do not entirely fulfil this function they do go some way towards clearing up some uncertainties as regards the law of fair misconduct dismissal”.

The new guidelines dictate that the CCMA Commissioners must interpret and apply the Labour Relations Act as well as related legislation which is binding on the CCMA, with decisions made at the highest level of court, including the Constitutional Court, the Supreme Court of Appeal, Labour Appeal Court, High Court, and Labour Court.  It is compulsory for arbitration awards to be ‘lawful, reasonable, and procedurally fair’, to tie in with our Constitution.  Ultimately, the onus rests on the employer to prove the fairness of the dismissal.

The new CCMA Guidelines for Misconduct Arbitrations specifies that:

*   arbitration must be impartial

*   both parties may call witnesses to testify

*   the arbitrator must inform the parties of eleven aspects relating to the procedure of the arbitration, including the rights of the parties

*   legal representation may be requested by any of the parties, even during the arbitration procedure

*   the employee should be asked what compensation is requested

*   a written award with reasons must be sent to both parties within 14 days of the arbitration

*   the arbitrator must evaluate the evidence based on the probabilities, and reliability of the witnesses

*   the commissioner must evaluate the evidence against the Labour Relations Act and the company’s disciplinary procedures, and must check if there was a relevant rule, if it was known to the employee, if it was contravened, and if the rule was reasonable.

*  The commissioner must evaluate whether the dismissal was appropriate, given the gravity of the contravention by the employee, and whether it was justified in being a ‘serious misconduct‘.

*   in making an award, the commissioner must evaluate whether re-instatement of the employee is feasible (given that the employee would like to be re-instated) and ‘tolerable‘.  If re-instatement is not accepted by the employee or deemed to be intolerable, a ‘just and equitable’ compensation must be determined by the commissioner, but may not exceed 12 months.  The commissioner may levy an arbitration charge, and may seek additional compensation from the employer for the employee if it was deemed by him/her to be a ‘seriously unfair dismissal’.

Most CCMA cases are ‘ConArb’, a combination of Conciliation and Arbitration.  Many employers (and employees) are unprepared for this, and do not understand that information provided in the Conciliation phase will not be incorporated in the Arbitration phase at all, therefore necessitating a repeat of all relevant facts at the Arbitration stage.  It is important for employers to be well prepared for such CCMA hearings, in knowing their rights, and to be informed about the procedures, and to be in contact with their labour lawyers during the hearings, as an Arbitration can turn out to be a very costly exercise.  In the past, employers have felt that commissioners have automatically sided with employees, therefore procedurally unfair!.

CCMA Guidelines: Misconduct Arbitrations, Notice 602 of 2011, Government Gazette, September 2011.

Chris von Ulmenstein, Whale Cottage Portfolio: www.whalecottage.com Twitter: @WhaleCottage

Whale Coast tourism DMO refuses to make minutes a-whale-able!

For the past six weeks all attempts at obtaining minutes of two Special General meetings called to change the Constitution of the Cape Whale Coast Destination Marketing Organisation (DMO) have failed, with an e-mail from its Vice-Chairman, Daniel Acker, refusing access to the minutes both in my capacity as a member of the Hermanus Tourism Bureau and as a writer of this blog, without approval at the next Board meeting!  We question what the Cape Whale Coast DMO is trying to hide by not making the minutes of the two meetings available.  Maybe the Cape Whale Coast payoff line ‘wonders never cease’ is apt, given that the DMO is working with municipal funding generated from Overstrand ratepayers, and therefore transparency should rule!

More than two years ago the Cape Whale Coast DMO was established by the Overstrand Municipality, which is responsible for the municipal services of the area stretching from Rooi Els in the west to Gansbaai in the east.  The DMO is based in Hermanus, and half of the Board members are from Hermanus, under the Chairmanship of Misty Waves Hotel Manager Clinton Lerm.

When the Cape Whale Coast DMO was established, its constitution automatically made all business owners along the Overstrand members of the DMO, if they were paying rates and taxes.  No membership fee was payable.  The DMO’s main task, as per its name, was to market the Overstrand towns as a joint tourism destination and to manage the tourism bureaus in each of these towns .  The same constitution contained a directive that a CEO would be appointed, to manage the DMO.  This appointment still has not happened.   This means that a Board of 14 Directors manages a Section 21 company with only one staff member, and therefore the directors of the Board have taken over management positions for the DMO.  For example, Lerm’s mother Maxie handles Marketing and Public Relations for the DMO, and Clinton Lerm and Daniel Acker (of People Management Solutions Group, a labour practitioner in Hermanus, with no tourism business interests) represented the DMO in May at the ITB tourism trade show in Berlin, and another in Russia (an insignificant tourism market for Hermanus!).

Earlier this year the DMO changed its Constitution of 28 November 2007, at a second Special General meeting held on 8 March at the Lerm’s Misty Waves Hotel, with a resolution seconded by Chairman Clinton Lerm’s father and Director Maxie Lerm’s husband Henry (after a first Special General Meeting on 1 March had failed due to not attracting a required quorum of 100 attendees – only 14 members attended).  The change to the constitution was motivated to the DMO members on the basis of the changes made to the ‘Municipal Finances & Companies Act’ (no such Act exists – it is called the Municipal Financial Management Act, and it does not appear to contain any clauses that would have necessitated the constitutional changes made), the minutes of the meeting of 1 March stated!   The major change was that Overstrand ratepayers no longer were automatically members of the DMO, and allowed the DMO to set up membership of its tourism body in competition to the tourism bureaus in the Overstrand area.   The minutes of the 8 March meeting are very brief, and do not state who attended the meeting – bizarrely the Constitution allows a second Special General Meeting to be held a week after the first one if it fails to attract a quorum, and can conduct its business as long as at least one member is present!

What attracted attention to and the first criticism of the DMO was that the DMO has set up a kiosk near the key whale-watching area in Hermanus, from which it was taking accommodation bookings only for its members, and not for all members of the Overstrand tourism bureaus.  These members are now asked to pay a double membership, to belong to both bodies, yet each tourism bureau reports to the DMO, an unheard of model of tourism marketing, if Cape Town Routes Unlimited, the provincial marketing body, is the role model for the DMO.  Even more curiously, the Hermanus Tourism Bureau, which has an unfortunate location at the old railway station building, had to vacate its offices due to construction work close by, and was not given the kiosk, so that it can be easily found by tourists requiring accommodation and other tourism information.

Even more odd is that as a result of two competing tourism bodies in Hermanus, the town now has two whalecriers!   The original whalecrier of Hermanus, who was an appointee of the Hermanus Tourism Bureau, had his appointment terminated due to an offence, just as the DMO was heading for Berlin.  Desperate to have a whalecrier on show, the DMO appointed the whalecrier, and took him to Berlin at short notice.  He has been appointed by the DMO to man its kiosk, and the Hermanus Tourism Bureau has appointed its own whalecrier!

Late last year we questioned these actions of the DMO,coupled with the conflict of interest in Clinton Lerm being both the Chairman of the Hermanus Tourism Bureau and of the DMO.  This resulted in a letter from the DMO’s lawyers, threatening legal action.  Nothing came of this threat, probably as the DMO management realised that a number of dissatisfied Overstrand tourism bureau members feel as I do.

In July the DMO held its AGM, and on the basis of its constitutional amendment, disallowed any Overstrand tourism bureau members from attending the meeting if they did not hold DMO membership, and were also not allowed to be nominated or elected to the Board of the DMO.  This is when I started asking questions, requesting a copy of the DMO Constitution (previously this was freely available on the Overstrand website www.overstrand.gov.za), and the minutes of the meetings approving the constitutional changes.  It took four weeks to receive the e-mailed copy of the Constitution, and two days ago the following officious and somewhat threatening e-mail was received from Daniel Acker (all correspondence had been addressed to Clinton Lerm!):

“This response is done without prejudice of the rights of the author, Cape Whale Coast Destination Marketing Organisation (herein after referred to as ‘CWC DMO’), or the Overstrand Municipality. All rights of these personae therefore remain reserved herein.

Your email herebelow (sic) has been read, and the tone & content thereof has been noted. We place on record herewith that we shall not respond thereto in full, at this time, and reserve the right to do so at a later stage and in the appropriate forum.

Regarding your request, related to the minutes ‘minutes that approved the change of the Whalecoast DMO’ . We assume that you refer  herein to the minutes related to changes to the Constitution that were presented to, and approved by, the Counsellors (sic) of the Overstrand Municipality. These minutes are available to members of the CWC DMO, and our records show that neither you, nor your establishment, are members of the CWC DMO. Your request in this regard shall therefore have to be tabled at the next full board meeting, for consideration.”

 

What the members of the tourism bureaus in the Overstrand want is to be part of the DMO by virtue of their membership of the tourism bureaus which report to the DMO, and that bookings will be taken at the kiosk for all members of tourism bureaus in the Overstrand at no charge of membership, but on payment of a standard 10 % commission of the booking value (the DMO charges 12% commission in addition to its membership fee).    Neither the old nor the amended constitution of the Cape Whale Coast gives the DMO the duty to run a tourism bureau in opposition to those already operating in the Overstrand.

Furthermore, the Constitution does not prescribe that nominees for the Board must be members of the DMO (for example, a representative of the Overstrand Municipality is specified as having to be a director), nor does it prescribe that only DMO members can vote for the election of its Board of Directors, or on any other matter – it was confirmed that Hermanus Tourism Bureau members were not allowed to be nominated as Directors, nor voted for at the recent DMO AGM, according to an e-mail sent to me by Daniel Acker.   Members furthermore question why the Misty Waves Hotel features so prominently as the venue of the DMO meetings, and how two co-owners of the hotel can serve on the DMO Board, one of them handling the PR and Marketing for the DMO.  Whilst the Constitution defines the role of the Chairman of the DMO to be to lead the Board, to induct the directors, to plan meetings, and to ‘support the CEO’, it is questioned why Chairman Clinton Lerm, and not his mother Maxie, went to Berlin and Russia to represent the DMO, and why Daniel Acker had to go as well.  The duplication in tourism offices and in whale criers is also questioned, all being wasteful expenses.

It would appear that pressure on Chairman Clinton Lerm may be leading to some changes, and it is rumoured that he has resigned as Chairman of the Hermanus Tourism Bureau, due to the conflict of interests in heading both bodies, something we pointed out in our blog post of 28 December already. However, he has not yet formally announced his resignation, nor confirmed it when we requested this of him by e-mail.

POSTSCRIPT 2/9:  The Comments section for this blog post makes for interesting reading, in setting out two points of view – two guest house owners’ perspectives, who argue along the lines of this post, and that of a Director of the Cape Whale Coast DMO, who protects the interests of the DMO.

Furthermore, the Hermanus Tourism Bureau has e-mailed its members an article which appears in the Hermanus Times today, written by Clinton Lerm.  It justifies what has happened constitutionally, and announces that members of the Overstrand tourism bureaus will automatically become members of the DMO, once this constitutional change has been approved at a Special General meeting of the DMO.  Taking bookings at the Market Square kiosk for all Overstrand tourism bureau members is also receiving the DMO’s consideration – we applaud the DMO for listening to their “customers”, and wonder why this was not dealt with correctly from the word go!

Chris von Ulmenstein, Whale Cottage Portfolio: www.whalecottage.com

Cape tourism consolidation “turning back the clock”, says Cape Town Tourism

The Board of Cape Town Tourism has diplomatically told the MEC for Finance, Economic Development and Tourism, Alan Winde, that it is not happy to turn back the clock, and support his proposal for a centralised provincial tourism marketing agency, in that this would impact on the running of Cape Town Tourism, and of the marketing of brand ‘Cape Town’.

Last month MEC Winde announced his plan to consolidate Cape Town Tourism and Cape Town Routes Unlimited into one centralised provincial body, and to market one centralised Cape Town/Western Cape brand, which created an outcry, and resulted in a carefully worded statement from Cape Town Tourism (read our blog post).

In a recent meeting between the Chairpersons of Cape Town Tourism and Cape Town Routes Unlimited, and of MEC Alan Winde for the province and Alderman Felicity Purchase for the City of Cape Town, the way forward was discussed between the two parties.  It was agreed that an apolitical body was needed which would not change every time a new politician was elected at provincial or City level.   They also agreed to appoint an independent Change Manager to lead the process of negotiation between the two parties.  Both parties importantly agreed that Structure must follow Strategy.

Given the consultative nature of the process, Cape Town Tourism called a meeting of its members, to inform them of the MEC’s plan, to present to its members its counter-plan, and to hear the industry speak.  It was disappointing to see so few, and so few heavy-weight, members attend.

Mariette du Toit-Helmbold, CEO of Cape Town Tourism, provided background to the process of tourism unification, it not being the first attempt to unite the two tourism bodies.   In 2002 the provincial government and the City decided to unify the marketing of Cape Town, by taking this role away from Cape Town Tourism (Sheryl Ozinsky was the CEO of Cape Town Tourism at the time), through the creation of a Destination Marketing Organisation (DMO), named Cape Town Routes Unlimited.  The role of Cape Town Tourism was to unite seven local tourism bureaus, stretching as far as Somerset West, into one Visitor Information network, with unified Cape Town Tourism branding.  Cape Town Tourism was re-created, with a new Board of Directors and a new Constitution, created as an apolitical industry association, a body for members run by a Board elected by its members, and reasonably independent of the City of Cape Town’s funding, in that it focused on the generation of own-income.

A review organised by the City of Cape Town Mayoral Committee member Simon Grindrod in 2007, and a report full of negatives about Cape Town Routes Unlimited, led the City to withdraw its funding of Cape Town Routes Unlimited, having been a 50 % funder of the body, and gave the body the required one year notice.    In 2008 Cape Town Tourism was appointed to market Cape Town, and it was allocated the monies that would have gone to Cape Town Routes Unlimited, after Cape Town Tourism had asked its members’ support in taking on this role – the industry was unanimous in expressing its support.  This led to a city and a provincial marketing body, each marketing Cape Town, and with overlap in marketing the province as well.

MEC Winde is proposing that tourism marketing for Cape Town and the Western Cape be centralised into Cape Town Routes Unlimited, but that this body change its name.  It would be the primary body marketing Cape Town, and would be largely funded by the City of Cape Town.   This, Cape Town Tourism’s Board believes, is turning back the clock, as Cape Town Routes Unlimited is exactly such a body established six years ago, and has failed dismally.  The MEC wants a single destination marketing organisation, a single marketing strategy, and a single brand (currently it is the mouthful of ‘Cape Town and Western Cape’).   Further, the MEC has proposed that Cape Town Tourism market Cape Town domestically, while the province market it internationally.  Major events should be marketed by the province, and smaller localised events should be marketed by each affected or organising tourism body.  Cape Town Tourism stated that it felt that the MEC’s proposal contained too much emphasis on structure, even though he himself has stated that Strategy should drive Structure, especially given that the MEC has specifically suggested that the Board of the new body be appointed by the Premier and the Mayor, once again politicising tourism marketing.

Cape Town Tourism stated that the implications for Cape Town Tourism of the MEC’s proposal would be as follows:

1.  All marketing policies would come from provincial level

2.   A joint Cape Town/Western Cape brand is not feasible, Cape Town Tourism correctly stating that “Western Cape” is not a brand but a ‘collection of brands’.

3.   Strategy, structures and policies will once again be approved by politicians, given the proposed structure.  The body should be apolitical, and tourism must be protected against political changes.

4.   The province is proposing to only fund the establishment of the new DMO, and is expecting the City of Cape Town to fund all marketing costs, reducing the marketing budget dramatically and adding more administrative costs, reducing the monies available for marketing.

In its carefully worded response to the MEC, the Board of Cape Town Tourism stated that it was important that the marketing of world cities such as Cape Town should be driven by international best practice.  It does not support the establishment of a single DMO, but rather would like to see distinct roles and responsibilities for the two parties.  It was emphasised that Cape Town Tourism does not want to take over the marketing of the province (although many a Cape Town Tourism member would like to see this happen!).

Cape Town Tourism stated that its counter-proposal to the MEC was as follows:

*   create a joint integrated tourism marketing network

*   brands must be managed at local and regional level

*   Cape Town is the key tourism brand in the province, with its own unique identity, and cannot be straight-jacketed into a provincial marketing programme.

*   International best practice shows that successful city marketing is city-driven tourism, based on public/private partnerships.

*   The lifetime value of Cape Town’s ‘customers’ must be harnessed, via Customer Relationship Marketing.

*   Duplication of marketing activity and expenditure must be eliminated.

*   Cape Town Tourism should take over responsibility for the Convention Bureau and Events, two functions sitting with the province, and dominant sources of tourism income.

*   Cape Town Tourism should be the hub of tourism stakeholders, including the citizens of Cape Town.

In concluding the discussions at the Cape Town Tourism member meeting, the members were given an opportunity to state their views.  The tremendous success of Cape Town Tourism in marketing Cape Town and in dealing with the world’s media based in Cape Town during the World Cup demonstrates how successful the body is, and that it should not be re-engineered if it is working so well, the members were told.   Given that both bodies are spending taxpayers’ monies, it is expedient that such money not be wasted by creating a new structure.

POSTSCRIPT 24/8: An e-mail sent to Cape Town Tourism members during the course of today includes the following: “In a new development, the MEC has given his assurance that no decision will be taken on the issue of tourism structures before a tourism strategy for the Province has been agreed, in consultation with key city and regional stakeholders. Cape Town Tourism fully supports this move and will be taking part in the strategic planning process”

Chris von Ulmenstein, Whale Cottage Portfolio: www.whalecottage.com