The preamble of the Labour Relations Act 66 of 1995 (LRA) boldly stipulates that the LRA was promulgated to “change the law governing labour relations and for that purpose to provide simple procedures for the resolution of labour disputes through statutory conciliation, mediation and arbitration.” In straightforward terms, “the purpose of the LRA is to advance economic development, social justice, labour peace and the democratisation of the workplace by fulfilling the primary objectives of the LRA, which are the effective resolution of disputes.”
From a vantage point, the thrust of South African labour legislation is premised on alternative dispute resolution in the form of statutory conciliation. Conciliation in the context of this article necessitates that after a dismissal, the employer and employee meet under the auspices of the CCMA or bargaining council in an earnest attempt to resolve the dispute. If the conciliation fails to resolve the dispute, other avenues exist, such as arbitration or adjudication at the Labour Court. The benefit of conciliation cannot be underestimated.
Conciliations are held within a reasonably quick time after the dismissal, and they are free. The beauty of conciliation is that the employer and employee are allowed to choose how to resolve their dispute, as opposed to leaving the decision to an arbitrator or judge, who will make a decision that will only favour one party.
Notably, in current cases, parties are quick to ignore the conciliation process and attempt to pursue adjudication to obtain relief. The judgment in Industrial Oleo Chemical products v Numsa and others DA05/2023 exemplifies this.
The employer embarked on a large-scale retrenchment. Consultations duly took place, and the employees who had been consulted were retrenched. In what can be described as a ‘knee-jerk’ reaction, the trade union elected to refer the matter to the Labour Court for adjudication. The employer raised a preliminary issue that the matter was not conciliated as required by Section 191 of the LRA.
The trade union believed that no such referral to conciliation was required based on their interpretation of the LRA. The Labour Appeal Court was subsequently tasked with determining, amongst other issues, whether it was proper for a referring party to bypass the CCMA conciliation process and approach the Labour Court directly.
The court found that conciliation is compulsory in terms of Section 191 of the LRA because it gives parties to a dismissal or retrenchment dispute the opportunity to “explore the possibilities of settlement” and thus avoid costly and protracted litigation.
It is lamentable that, in this case, the period between the employees’ retrenchment and the judgment of the Labour Appeal Court took years to finalise. During this time, employees were probably unemployed and awaiting the outcome of their dispute. It is considerable that this dispute could have been finalised quickly and for free if the matter were referred to conciliation.
Employers should never underestimate the power of conciliation as a means to resolve a dispute. Conciliation is a give-and-take. A ‘win-win’ solution to a dispute that can get drawn out and protracted in our courts, notably with an expensive price tag.
Article By Shakti Jainarain
Senior Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)