Department of Labour on public complaints and cases referred to it for actioning

Meeting report

Labour Department: Briefing on complaints received

Mr Thobile Lamati, Director General (DG): Department of Labour (DOL), said the purpose of the presentation was to provide a detailed account of the complaints forwarded to the Department from the beginning of 2015 to date. A total of 54 complaints had been received, 36 had been resolved, 12 referred to other departments to be resolved, and six not resolved.  The reason the six remained unresolved was that the Department was waiting for outstanding documents from complainants. As soon as the Department received the outstanding documents, the cases would be finalised.

The programmes which received the complaints were:

• Inspection and Enforcement Services (12);
• Labour Policies and Industrial Relations (4);
• Commission for Conciliation, Mediation and Arbitration (8);
• Compensation Fund (15);
• Unemployment Insurance Fund (3);
• Other (12).

Mr Lamati provided the Committee with comprehensive details of all 54 complaints.

Discussion

The Chairperson requested Mr Lamati to shed light on specific issues of concern. What was the source of delays for health reports? Who was following up on the outstanding issues while making sure they were finalised? What did “private teacher” mean, and to what were they entitled?

Mr Thobile Lamati, DG, responded by explaining that a private teacher was one appointed by a school governing body, and not by the education department. The outstanding documentation from other departments were requested from the director general (DG) of those departments, and the DGs in those departments were responsible for following up on the outstanding matters.

Mr Vuyo Mafata, Commissioner: Compensation Fund, said that a medical report was provided by the treating medical service provider -- a doctor or a health professional assisting the injured worker. The medical report was submitted to the employer, who would then submit to the relevant authorities to claim. In instances where there was no final medical report, simply because it was not available, would imply that the client was still undergoing treatment. Without the final medical report from the employer, an assessment to determine the level of disability could not be conducted, neither could the pension amount be determined for the injured worker. However, in cases where the treatment had been concluded but the medical report was still outstanding, the Department would follow up with the employer as well as the treating doctor to demand the medical report.

Ms S van Schalkwyk (ANC) commended the Department on the positive outcome for some of the complaints they had received. The DG had mentioned that the referral of some complaints to other departments had slowed down the resolving process, so if after the DOL had referred some complaints to other departments to be solved, did they still support the process of trying to resolve those complaints? Did they follow up within certain intervals on the progress and development of a solution? In cases where the progress in dealing with the complaint was very slow, did they report it to the senior officials or political heads? There had been a progressive increase in the number of complaints, especially in 2018, and the Western Cape had registered the highest number, so had there been an investigation to establish why this had happened. In cases where complainants requested to see the Minister directly, was the Minister aware of these requests?

She also raised concerns with regard to a complaint which had to do with a Compensation for Occupational Injuries and Diseases Act (COIDA) amendment. She said that in 2016, the Department reported to the Committee that they were going to finalise the COIDA amendment and submit it by August 2016 at the latest. The deadline for the submission of the amendments to Cabinet had been 31 May 2018. She was now worried that they were nearing the end of their term in office, yet this specific issue had not been finalised, and asked for clarification.

Mr L Khoarai (ANC) said that his question was based on the notion of a community. Members were working in different communities and constituencies. In his constituency, 60% of his work was based on labour issues, especially the dismissal of the people by the bosses at farms and industries. There was a perception that the employers bribed the commissioners of the Commission for Conciliation, Mediation and Arbitration (CCMA). People were not satisfied with the CCMA processes when they were dealing with cases, so he requested the Department to assist, especially in the constituencies which were farm-based. He also asked how people’s faith in the CCMA could be helped to be restored, as it was a very important institution.

Ms L Theko (ANC) asked, if a case was closed and it reappeared again, was it regarded as a new complaint or a follow up of the same complaint? For instance, when a case had been closed, how did the Department engage the client with regard to the outcome? If they were dissatisfied, did they continue to engage them? In a situation where the documents have been destroyed, how did one close the case, since now there was no information to support it? She also commented on the upcoming elections, and wanted to find out if there were outreach programmes that had been planned to reach out and inform the public.

Mr M Bagraim (DA) commented on the fact that most of the complaints were of legal nature, and that people could have contacted the CCMA call centre for their cases to be resolved, rather than having them come to the DG’s desk. Most complaints had to do with a worker’s compensation, and the Compensation Fund also had its own complaint centres. He suggested that the public had to be informed so that they could use the correct channels and established systems, thus preventing the complaints escalating to the DG’s office and making the whole process extremely tedious. He also asked the Department to comment on the fact that when people did not get what they expected, they were never going to be satisfied, no matter what one did. A good settlement meant two people walking out of the room -- and both of them were unhappy. He was surprised that the presented document of the complaints was very small, as he believed that there were a million or more out there in the public.

Mr D America (DA) said he was also surprised that there were very few complaints. He asked how long it took to resolve a particular complaint.

Mr P Moteka (EFF) said it was the Department of Labour’s responsibility to follow up on the complaints they had referred to other departments, and also to make sure that the workers were well looked after and protected. Most of the complaints had to do with compensation, and only 10 of the 15 cases had been resolved. This was a reflection of the fact that compensation was problematic. The DG had said that there were issues that did not necessarily have to come to Parliament and that could have been dealt with at their respective offices or institutions, but the reason people brought their issues to Parliament was because of the frustrations they encountered as they attempted to follow the processes.

Ms Van Schalkwyk said that before the midyear recess, the Department had been requested to provide the Committee with a schedule of the outreach programmes, so that during the constituency period Members could find the outreach programmes near their constituencies that they could attend.  However, she was not sure if there had been a miscommunication between the secretary and the Department, but the details had not been submitted, and she wanted this to be explained.

The Chairperson asked how workshops would be provided to the locals to inform them of the services available and the processes of delivery. In situation where the Department received complaint about which they could not do anything, because the law did not cater for that specific issue at that particular time, what did they do? Did they say the complaint was irrelevant and not in line with law, or did it kick start the possibility of policy amendment? He also commented that a client’s dissatisfaction could either mean that the client was not clear about the provisions of the law, or that there was a gap in the law. The Chairperson asked about a situation where a client accepted an offer and the complaint was closed, but the client had been placed in a situation where he or she did not have a choice? Could the ruling be right?

Department’s response

Mr Lamati said the Department ran advocacy cessations as part of its programme throughout the year. Sometimes they responded to requests from the public, workers or employers to run workshops, and during these sessions they explain issues such as the process that the CCMA follows when they adjudicate cases. The Minister and Deputy Minister also had outreach programmes, and they take this programme seriously. Every section of the Department was part of these programmes where they interact with the community and explain the laws and how they could get matters resolved. The DG also ran an outreach programme called “Taking services to the people.”

Recently, the Department had spent three days in a specific area, where they had interacted with employers, organised labour, community representatives and the municipality. They also had an open day, when people could come in with their complaint and an inspector would go immediately to inspect. For those who had an outstanding Unemployment Insurance Fund (UIF) claim, they could get their claims processed. The Department would also come with all the service providers that were linked to the work they did, so that in cases where one did not have a bank account, the bank could assist with creating a bank account for them so that their claims could be processed immediately. This week, they would be going to Rustenburg, and the Minister would be going to KwaZulu-Natal to hold discussions on the service of the Department. This service was provided to anyone who needed the DG to run workshops in their specific areas.

He explained about complaints that were outside the provisions of the law. For instances, some people were excluded from obtaining UIF benefits because they had resigned. Some thought that when they lost employment, they would get benefits. However, South Africa had a huge unemployment rate and could not promote situations where people could decide to resign for whatever reason, thinking that once they had resigned they would get easy accesses to their UIF benefits. Such instances where not catered for by the law.

He said that the Committee could instruct the Department to accept an amendment to the law, since they may deem a certain part of the law as redundant after engaging with the public – a lacunae, or gap in the law. He agreed that there was a need to look at the issue of settlements offered in instances where the client was forced by the employer to settle, due to existing pressures. However, if the matter had been resolved as a settlement, it could not be touched because the settlement had been endorsed by the court. Issues of this nature would require legal assistance.

The suggestion that the Department of Labour was experiencing difficulties in solving its own problems was not true. The EFF had brought this issue to his attention before, but he had instructed them to use the correct process and provide the Minister with accurate information. The DG emphasised that there were no problems in the Department after giving a detailed account to the Committee in regard to the EFF’s concerns.

He said that in 2015, the Department of Public Service and Administration (DPSA) had issued a circular which stated that if someone was not part of the core function, then their post was at level 9, even if they were currently sitting at level 10 because they had been upgraded to that level. However, when the post became vacant, they had to return to level 9, and when it was advertised it had to be advertised as a level 9 post, because it was not a core function. This also applied to people in levels 11 and 12, who were assistant directors and deputy directors, and not junior managers. What happened was that some government officials in all departments were not happy. For example, Department of Transport (DoT) employees had taken the DoT to court. The Departments of Justice and Water, and Mr Ishmael Zwakala from the Department of Labour had also gone to court, and they had won their cases. When the Department had gone to the DPSA for advice on how to deal with the cases, the DPSA had said that it was the responsibility of the Department to deal with these matters, so they had upgraded Mr Zwakala and moved him from level 11 to 12. The DPSA’s advice had been that individual employees should take up their cases either with the courts or the Public Service Bargaining Council, and if they won or lost their cases, the decisions had to be implemented accordingly.

The DG said he had personally written to the DG of the DPSA, informing him that this did not sit well with the Department of Labour and had requested a meeting with him to find a solution. This was because the DoL’s philosophy was equal pay for work of equal value, and the circular was creating a problem for all departments. This had been one case where the employees and managers of the departments were not in conflict with each other, but they disagreed on when it was going to be implemented. He had been working closely with the DPSA to find a solution to the matter. He had explained to the colleagues that he would use department to department bargaining to find a solution. A council composed of management representatives and unions had been created to discuss this issue on Friday 24 August.

The DG observed that if one had 15 complaints, resolved ten, but had not yet resolved five, did not mean that the Department was ineffective. People should not blame the Department without considering the factors which might have affected the processes to resolve the issues, and he did not think there should be any reflection on the Compensation Fund, claiming that it was not doing its work. There were no new cases with regard to the Compensation Fund that had not been adjudicated, but there might be cases that were in the process of being resolved.

He agreed that some processes could be very frustrating. However, these laws had been approved by Parliament, so the Department had to abide by the law. They took some time to talk to clients if they were not happy. They also wrote letters to their clients to inform them that their complaint was being resolved, and also information on how it was being resolved. They were still following up and monitoring the progress the cases that were referred to other institutions until they were finalised.

He agreed with the assertion that there were many more people out there with similar complaints which they did not process on a daily basis. He argued that the 54 complaints were special because they had been brought to the attention of the Committee, which had therefore referred them to the Department.

Regarding how long it took to resolve a complaint, Mr Lamati said that there was a standard operating procedure in the Department that indicated how long it took to resolve a complaint. For instance, in a situation where the employee complained that he/she had not been paid for overtime, the Department would go to the employer, and if the employer did not comply then they would issue a compliance order which took about 21 days. Such factors would be considered when it came to calculating the amount of time need to resolve a complaint. Generally, a complaint would take about 90 days to be resolved.

He agreed that the matter of dealing with private teachers was the responsibility of the school governing body (SGB) to deal with. Such issues were referred to the Department of Education, since it was in a better position to access the SGB more quickly.

He also agreed that it was very difficult to manage people with high expectations, because they did not understand the processes and what it took to arrive at a decision. Much had to be done to raise awareness of these processes through constituency offices, advice centres and advice offices.

In instances where same complaint had recurred, the Department would go back and trace it, since it had a reference number, so it would not be treated as a new case.

He said there were no major reported issues with regard to the credibility of the system, and if they ever came up they would be more than willing to carry out investigations.

Regarding the delays with the COIDA amendment, Mr Lamati said that the National Economic Development and Labour Council (NEDLAC) processes had taken longer than expected. There were important discussions with National Treasury that needed to be discussed. The document had to be taken to the economic cluster of directors general for approval. At the moment, they were at a stage where they were waiting for a Cabinet sitting where it would be discussed and sent out for public comment, after which it would come back to the Portfolio Committee.

Discussion

The Chairperson asked if the issue of exclusion from the UIF was a legislative or a regulation matter.

He asked the DG to imagine himself in the shoes of a worker who needed to be compensated, but who could not be compensated without a final medical report which he did not have, since he was still undergoing treatment. Despite the fact that by law he needed to compensated, they did not compensate him because they were still waiting for his medical report which was taking longer because he was still being treated. What would he do in this situation?  And what was the purpose of compensation?

The Chairperson acknowledged that the Department of Labour was a service department, not a technical department.

Department’s response

Mr Teboho Maruping, UIF Commissioner, said that the issue of exclusion from the UIF was stipulated by the law, so it was a legislative matter. The exclusion in the Act was being reviewed. He mentioned the availability of illness benefits, in response to the Chairperson’s concerns. He added that the public needed to be educated about the CCMA so that they could be informed and take advantage of the services provided.

Mr Mafata, Compensation Fund Commissioner, said that the law required the employer to pay the employee while the claim was being assessed. They would know the level of disability of a client only after they had received the final medical report. In instances where the employer paid the salary to the employee, the employer was reimbursed for the salary paid to the employee. After the client had been assessed and deemed permanently disabled, then the employee automatically qualified for a pension from the compensation fund.

Mr Lamati said the issue of a help desk would be implemented, since it would increase efficiency and reduce queues.

The Chairperson concluded by emphasising the need for relevant workshops to inform and capacitate workers on their rights. The Department should also identify big employers and hold specific workshops so that they were well informed of the correct channels to address the grievances.

The meeting was adjourned.