A Conciliation is the first process, barring points In Limine, which take place when a dispute is referred and placed on the case roll at the CCMA or Bargaining Council. During Conciliation, the Commissioner appointed will explore avenues in which they can assist the parties involved to reach an agreement and resolve the dispute where possible.


Let us look at a general unfair dismissal dispute as an example, and discuss the ways this dispute may be resolved at Conciliation.


A dispute may be resolved by means of reinstatement; this is where the Applicant returns to work as if there was no break in employment. The Applicant will commence duty in the same positions and on the same terms as held before the alleged dismissal. The reinstatement may include retrospective payment for the period between alleged dismissal and reinstatement, an alternative amount, or it might not include any payment at all. This will depend on the agreement concluded between parties.


Re-employment can also be a means of resolution; here, the Applicant will conclude a new contract of employment, and this may bring forth a possible new position, terms and conditions, as well as a remuneration package. In this instance, the Applicant will start as a new employee.


Compensation may be one of the most popular means of settling disputes at the CCMA or Bargaining Councils, and in many instances, the Respondent will offer a monetary amount to resolve the matter and have it finalised.  The monetary amount is established by way of negotiation between the parties.


A non-monetary settlement is also an option, and this may take many forms and can be tailored to the specific parties and their individual request and negotiations. An example may be an instance where a dismissed farm worker agrees with his former employer to settle the dispute for assistance in moving the workers’ possessions from the farm to a home in town. These agreements can take many forms, and the terms will be determined by the parties within reasonable and legal parameters that both the Applicant and Respondent are comfortable with.


The Applicant may also, at Conciliation, opt to withdraw the dispute and no longer peruse the matter.


Should any one of the above occur, the matter will then be concluded, the case will then be resolved. The Conciliation process is a confidential process without prejudice, and no offer made or suggested may be held against any party if no resolution can be reached. Should no resolution be reached between the parties, the Commissioner will issue a certificate of non-resolution, and the matter will proceed to the next phase being Arbitration.


During the Arbitration phase, the Commissioner now has the decision-making powers in their hands, and after all testimony and evidence has been lead, the Commissioner will decide on the outcome of the matter. During the Arbitration phase, the decision-making power will no longer be vested with the Applicant and Respondent, as was the case during the Conciliation phase. At Arbitration, there will be a winner and a loser, and the Commissioner will issue a ruling/award.


The Conciliation process should, however, not be taken lightly. Should the parties to a Conciliation conclude an agreement and have those terms contained in a signed settlement agreement document, it becomes binding and non-compliance with the terms of the settlement agreement may result in the settlement being made an Arbitration Award and enforced as if it were an order of the Labour Court.


It is thus of the utmost importance to always give proper consideration before any agreement is concluded, and the parties concluding this agreement should have every intention to adhere to the terms thereof.


The parties will thus always have the option to attempt to resolve the dispute between themselves amicably. This is a voluntary process, and no party may be forced into any agreement or terms that they are not comfortable with. A settlement is also by no means an admission of any wrongdoing or admissions by either party.


Article by: Carlene van der Lith

Dispute Resolution Official – Kimberley