Labour relations Act | WhaleTales Blog by Chris von Ulmenstein

After having met Wesgro CEO Nils Flaatten two months ago, a week after he had taken over the responsibility for marketing the Western Cape from Cape Town Routes Unlimited, which organisation was incorporated into the trade and investment promotion agency on 2 April this year, we requested feedback about the progress made in marketing the region. Mr Flaatten had asked the industry to give him a month to get the organisational integration completed. An e-mail request for feedback on the marketing progress earlier this month led to an invitation by Mr Flaatten to meet with him on Tuesday.

The most exciting news for the local tourism industry, and Mr Flaatten’s first major challenge, is the 5 July meeting called with SAA’s General Manager Theuns Potgieter by Wesgro with 15 players in the Western Cape, including local and city government, an Eastern Cape tourism marketing body representative, and larger tourism companies, to discuss SAA’s decision to cut its Cape Town-London route as of 15 August. The airline will be asked to motivate its decision in culling the route. Joint destination marketing between the Western Cape and SAA in bringing in tourists from destinations such as Beijing, Sao Paulo, Mumbai, Melbourne, various African destinations, and Buenos Aires will be discussed too. Subsequent meetings will be held with the airlines which will continue to serve the Cape Town-London route, including BA, Virgin, and Emirates, to discuss bringing in more flights to Cape Town.

The parking organisation was perfect, and Mr Flaatten chose for us to go to Doppio Zero on St George’s Mall for the meeting. He had copies of the slides which he used for his recent presentation at FEDHASA Cape’s AGM, which I had requested via his secretary, but the wait was worthwhile, as Mr Flaatten was able to explain his points in greater detail. Mr Flaatten is a very precise person, and he referred repeatedly and proudly to the progress that he and his new team have made in the ‘two months and 19 days’ since their integration. In the past 80 days Wesgro has undertaken the following Marketing activities:

* Mr Flaatten and Solly Fourie, Head of the Western Cape Department of Economic Development and Tourism, accompanied an (unnamed) Chairman of a JSE-listed hotel company to Buenos Aires, to meet six outbound tour operators. Mr Flaatten praised their product knowledge of the Western Cape. He said that the withdrawal of the Cape Town-Buenos Aires Air Malaysia route is a serious blow to tourism from Argentina. His journey from Cape Town to Buenos Aires via Johannesburg took 24 hours, previously a direct flight of 7 hours flying west.

* Bjorn Hufkie from Wesgro’s Conventions Bureau accompanied the (unnamed) Managing Director of a JSE-listed hotel company to Saudi Arabia and Kuwait

* Participated in exhibitions: Arabian Travel Market in Dubai, IMEX 2012 in Frankfurt (incentive travel, meetings and events); and Indaba in Durban. Mr Flaatten said that all six the RTOs were represented on the Western Cape stand, and that they will ‘raise the bar’ for 2013.

* Debbie Damant has been part of SA Tourism’s marketing mission to China and Japan

* Met with Cape Town Tourism, the largest RTO (regional tourism organisation) of the six in the Western Cape, asking some ‘tough questions’ of them

* Met with Eden RTO, and some of its LTO’s (local tourism bureaus)

* Met with SAA at Indaba (prior to SAA’s bombshell announcement about the Cape Town-London route)

* The Western Cape Tourism Barometer for the fourth quarter of 2011 was released.

* The Wesgro website has been updated, incorporating its new additional Destination Marketing role, clicking through to the tourism information previously on the Cape Town Routes Unlimited website

* One of the greatest achievements is the detailed listing of over 100 events in the province in the next six months, with detailed information about each event

* Organisationally, the activities and marketing focus of the six RTOs (Cape Town, West Coast, Eden, Cape Winelands, Central Karoo, and Overberg), and its tourism bureaus within the municipalities within the RTOs have been captured, within a Customer Relationship Management program. An intensive Facebook campaign to interlink and like the LTOs and RTOs is underway.

Looking ahead for the next 10 months the focus will be to deliver on the Annual Performance Plan in respect of destination marketing; create operational efficiency, effectiveness and cost savings, which savings will go into the Events budget, Mr Flaatten said; fill staff vacancies; strengthening relationships with the RTO’s and LTO’s, international airlines operating from Cape Town International, tourism trade bodies, SA Tourism, and other national tourism bodies; ‘impactful marketing and advertising of the destination’, website integration and marketing strikes in respect of tour operators, to keep up the ‘share of mind’; aggressively market the Conventions Bureau, pushing conferences into the provincial towns and villages too; stimulate Events and fund smaller events; and SMME development. Wesgro is pitching to host SIAL Cape Town, which would become a fantastic new food event creating a ‘Global Food Marketplace’, already held in Paris and China, and is planned to be hosted in our winter months, to address Seasonality. The Western Cape Tourism Marketing Plan is expected to be ready by September. Inter-provincial travel within the Western Cape will be an important focus. Mr Flaatten was requested to provide feedback on what Wesgro is doing for the tourism industry as frequently as possible, all media communication to ourselves having been terminated since Wesgro took over. We fed back that the Tourism Bureaus are not passing on Wesgro’s information to its members, which seemed to surprise him.

Mr Flaatten provided a copy of the latest Tourism Barometer, surprisingly signed off by Calvyn Gilfellan, former CEO of the ex-Cape Town Routes Unlimited. In the last quarter of last year 216000 international tourists arrived in Cape Town, a welcome increase of 15% over the same period a year before. Domestic arrival growth was far lower in the same period, at 4%, with just under 1 million visitors. A large part of the report contains statistics of visitor numbers to the province’s key tourism attractions, and to the RTO’s local tourism bureaus, a very unreliable tourism barometer, given that fewer visitors require the information or booking services of tourism bureaus, doing most of their bookings at home via the internet before their departure.

Organisationally, the integration between the ex-Cape Town Routes Unlimited staff is complete, section 197 of the Labour Relations Act having been followed, in that all staff (also the Wesgro staff) were offered staff benefits at the higher level of those offered by Wesgro and Cape Town Routes Unlimited, so that all Wesgro staff now receive the same benefits. A Memorandum of Understanding, a Memorandum of Agreement, and a budget have been signed by the Joint Working Committee guiding the integration. The Annual Performance Plan of Cape Town Routes Unlimited has been transferred to Wesgro. For the financial year April 2012/March 2013, Wesgro now has a total budget of just more than R51 million, 45% being for Cape Town Routes Unlimited funding. All ex-Cape Town Routes Unlimited staff now have Wesgro contracts, e-mail addresses, and business cards. Staff have been grouped by functionality and accommodated on the 7th and 12th floors of the Waldorf building. Provincial Tourism Minister Alan Winde’s department is working on repealing the Tourism Act of 2004, which will close down the Board of the ex-Cape Town Routes Unlimited, which currently has to remain operative as long as the current Act is in place.

Wesgro needs to start from the beginning in gaining the confidence of its Western Cape tourism constituency, which had little faith in its predecessor Cape Town Routes Unlimited. The outcome of the 5 July SAA meeting will be a crucial test of its negotiating skills. In addition, it will be judged on its ability to communicate with the tourism industry on a regular basis, via traditional media channels as well as Social Media marketing.

Wesgro, Waldorf Arcade, 80 St George’s Mall, Cape Town. Tel (021) 487-8600. www.wesgro.co.za Twitter: @Wesgro

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

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