It often so happens that you receive a notice of hearing from the CCMA or a Bargaining Council addressed to your company. Here follows a short description of what you can expect of each of the different processes:
In Limine (which simply means preliminary) is a hearing on specific technical legal points, which takes place before the actual case referred, can be heard. This has nothing to do with the merits of the case as it is usually related to matters of jurisdiction, etc.
Conciliation is a process where a Commissioner meets with the parties in dispute, and explores ways to settle the dispute by agreement. This can be by means of reinstatement, re-employment or compensation. The meeting is conducted in an informal way.
The Commissioner may begin by meeting jointly with the parties and asking them to share information about the dispute. Separate meetings between the Commissioner and each party may also be held. Parties are encouraged to share information and to come forward with ideas on how their differences can be settled. The Commissioner may also put forward suggestions as it is his / her role to try and resolve the dispute within 30 days of it being referred. If the dispute is settled, an agreement will be drawn up and that ends the matter. The Commissioner will issue a certificate recording that the dispute has been settled. If an agreement cannot be reached, the Applicant will have the opportunity to request for Arbitration.
At an Arbitration hearing, a Commissioner gives both parties an opportunity to fully state their cases. This process is much more formal than Conciliation as evidence is presented, testimonies are given by witnesses, cross examination takes place, etc. The Commissioner then makes a decision on the issue in dispute. The decision, called the Arbitration Award, is legally binding on both parties and it ends the dispute. Arbitration Awards are sent to the parties within 14 days of the Arbitration.
By agreement between the parties or when so instructed by a Senior Commissioner, the parties to the proceedings must hold a pre-arbitration conference to:
→ determine facts in dispute, common cause facts, issues to be decided, and relief claimed;
→ exchange documents that will be used in the Arbitration;
→ draw up and sign minutes of the pre-arbitration conference.
This process will allow for Conciliation and Arbitration to take place as a continuous process on the same day. Parties may object to both processes proceeding on the same day which will result in only Conciliation taking place. An Applicant may object by indicating such on the LRA form 7.11. An Respondent may object to this process by giving written notice to the CCMA / Council at least 7 days prior to the hearing. Parties must still attend the Conciliation regardless of the fact that there was an objection. Take note that no objection will be allowed for disputes relating to probation.
If the Arbitration does not immediately follow the Conciliation as set out in the notice, the Arbitration must be scheduled either in the presence of both parties at the Conciliation or by the CCMA / Council giving 21 days’ notice to both parties.
If a labour problem exists it is very important to take steps immediately. The statutory time periods for referring disputes are as follows:
Unfair dismissal – the dismissed employee must refer the dispute to the CCMA / Council within 30 days of the final decision to dismiss.
Unfair labour practices – the Applicant must refer the matter to the CCMA / Council within 90 days of becoming aware of the act or omission, which allegedly constitutes an unfair labour practice.
Discrimination – the Applicant must refer the matter to the CCMA / Council within 6 months of the act or omission that constituted unfair discrimination.
If the above time periods have lapsed, the referring party is required to make application to the CCMA / Council to condone the reason that he / she failed to refer the dispute timeously.
Parties may appear in person or be represented by a Director or Employee of that party or any Member, Office Bearer or Official of that party’s registered Trade Union or registered Employer’s Organisation. Lawyers are not normally allowed to represent parties; however they may be used with the Commissioner and the parties’ consent, or if the Commissioner decides that it is unreasonable to expect a party to deal with the dispute without legal representation.
Parties should always ensure that internal procedures and processes have been exhausted prior to making a referral to the CCMA / Council. The Labour Relation Act encourages parties who are in dispute to first attempt to try and reach an amicable solution to the dispute by exploring internal mechanisms.
For more information you can always visit the CCMA’s website: http://www.ccma.org.za/HomeDisplay.asp?L1=43; or just contact your nearest CEO branch.
Article by: Lindie Smit
Collective Bargaining Co-ordinator