The Labour Relations Act, 66 of 1995 (hereafter referred to as the “LRA”) was drafted with the spirit of conciliation and resolving labour disputes in the most cost and time-effective manner possible. A matter must be set down for conciliation within 30 days from the date of which the employee(s) has referred his/her dispute.
Commissioners are appointed as conciliators by the CCMA or Bargaining Council to assist the parties to find a resolution to their dispute.
Conciliation hearings may occur in person, telephonically or through an online digital platform. The commissioner embarks on a consensus-seeking journey to bring the parties closer to settlement during this process. How the commissioner does this is up to him/her.
Depending on the nature and/or sensitivity of the dispute, the commissioner may meet with the parties, separately and/or together, to explore different possibilities of settling the dispute. The commissioner will encourage the parties to share information about the dispute and their proposed solutions to the matter. A commissioner is entitled to explore the facts and merits of the dispute with the parties and may also provide suggestions to assist the parties in finding solutions.
Due to the nature of the conciliation proceedings, which is a voluntary process, the commissioner has no power to compel either party to attend or partake in the process. This process is also without prejudice, meaning that neither party’s evidence submitted or statements made shall be held against them at a later stage. Conducting the process in this way encourages the parties to share information openly and honestly so that all possibilities of settling may be explored. As can be seen, the conciliation process is relatively informal. It is left up to each commissioner to determine how they will conduct the process and guide the parties towards possible settlement.
Due to the voluntary nature of this particular process, the commissioner has limited powers and is not able to force any one of the parties to settle the dispute. Should the parties decide of their own accord that they wish to settle the dispute, the commissioner will reduce the settlement to writing. However, if the parties cannot agree on a settlement, the commissioner is obliged to issue a certificate of non-resolution, stating that the matter could not be resolved. Subsequently, the matter will either immediately proceed to arbitration or may be referred for arbitration at a later stage, depending on the process that has been set down for that specific date.
Based on the above, it will be wise for employers to contact their nearest CEOSA representative to represent the business at the applicable dispute resolution forum to ensure that you receive the best possible advice and guidance through the conciliation process.
Article by: Carine van Blerk
Dispute Resolution Official – Cape Town