The Con/Arb Process and the Objection thereof

The Con/Arb Process and the Objection thereof

Primarily the CCMA has two main processes, namely Conciliation and Arbitration.

 

At Conciliation an attempt will be made for the parties to reconcile their differences and settle the dispute between them. This settlement and terms thereof are at the discretion of the parties involved, being the Applicant (Employee) and the Respondent (Employer). Should the matter be settled, the matter is finalised by signing the settlement agreement. If the matter remains unresolved the next step will be Arbitration.

 

At Arbitration the decision-making power now shifts to a third party, the Commissioner. The parties no longer have control of the outcome as both versions will now be put to the Commissioner, and a decision will then be made as to whom was in the wrong. The Commissioner will then issue an Arbitration Award.

 

When a matter is initially referred to the CCMA the referring party being the Applicant will complete a form called a Form 7.11. If the Applicant does not indicate a clear intention to split the two processes mentioned above, it will be placed as a Con/Arb. Thus, Conciliation will proceed on the day, and if the matter could not be resolved it will then be heard as an Arbitration immediately thereafter on that same day.

 

Should a party to the dispute wish to only proceed with conciliation, an objection to the con/arb process needs to be completed and served in terms of section 191(5A) of the LRA, this process will prevent the Conciliation and Arbitration from proceeding back to back on the same day.

 

The objection should merely entail that the party intends to object to the Arbitration proceeding immediately after the Conciliation on the same day. This objection must be drawn up and then served on the opposition party and thereafter on the CCMA, along with the proof of service on the opposing party. This service should be done no later than seven (7) days prior to the date as set for the Con / Arb. If it is not served seven (7) days before the date, the application for objection will not be entertained or considered without the necessary application for Condonation.

 

The advantage of proceeding with both processes on one day can be that of time-saving, as the case is likely to be completed on that very day. However, objection to the joint process also has its advantages. Preparation for a full arbitration will not be needed if only Conciliation proceeds on the first date. An attempt to resolve the dispute can first be made before costs have been incurred by securing all witnesses that need to be available at Arbitration phase.  The parties can further obtain a better understanding of the opposition’s mindset during the informal Conciliation process, allowing for better preparation for the Arbitration. Issues can be narrowed which would also streamline/simplify the process and negating the necessity of certain witnesses. The Applicant can possibly decide to withdraw the dispute at Conciliation, also saving time and money as no Arbitration preparations like mentioned above would have been incurred.

 

In many instances the Arbitration process is never reached by the parties due to various reasons, it can thus save time and money to first deal with the Conciliation.  Should the case then remain unresolved, the Applicant will then be able to refer the matter for Arbitration, and the CCMA will then place it for Arbitration on a predetermined date whereafter full attention can then be given to the preparation as all avenues have then been perused and the matter remains unresolved.

 

Carlene v/d Lith

Dispute Resolution Official – Kimberley

2019-01-11T11:08:48+00:00January 11th, 2019|General|Comments Off on The Con/Arb Process and the Objection thereof