Employers are aware of the two processes at the CCMA, namely conciliation and arbitration. Conciliation is a means of attempting to conciliate and settle the matter before the next process, namely Arbitration, follows.
Both the Applicant-employee and the Respondent-employer can request that the Arbitration does not proceed immediately after a Conciliation process has failed. This would lead to only a Conciliation process proceeding on the specific day. Should either the Applicant or the Respondent choose not to attend the conciliation process, it would lead to the two parties facing each other at Arbitration for the first time.
Before the Arbitration proceedings commence, the Commissioner will request that the parties exchange and supply each other with their bundles and/or all evidence to be used by the parties during Arbitration. This in return may leave a party with too little time to prepare and peruse the evidence to be used against them.
Rule 29 of the CCMA rules indicate that parties can request disclosure of documents before the date of Arbitration and reads as follows:
1.) At any time after the request for arbitration, either party may request a commissioner to make an order as to the disclosure of relevant documents or other evidence.
2.) The parties may agree on the disclosure of documents or other relevant evidence.
Therefore either the employer or the employee may request that a Commissioner make an order as to the other party’s disclosure of the evidence to be used against them.
If Mr. Employer would want to have a look at the evidence to be used against him by Mrs. Employee, Mr. Employer may lodge an application in which he requests that Mrs. Employee disclose and deliver all the necessary documents, video footage and all relevant evidence to him within a specific time.
Should Mrs. Employee fail to deliver the requested evidence to be used, Mr. Employer may request that the Commissioner make an order which requires Mrs. Employee to disclose and deliver the evidence to Mr. Employer before Arbitration.
If Mrs. Employee failed to disclose the information as per the Commissioner’s order, I would suggest that Mr. Employer either request a postponement in order to peruse the evidence to be used and if postponement is not granted that the evidence cannot be used by Mrs. Employee against Mr. Employer during Arbitration.
Dispute Resolution Official – Free State