Conciliation is an informal process where a commissioner appointed by the CCMA meets with the parties to a dispute and explores ways to settle the dispute by mutual agreement. Only issues referred to the CCMA in terms of the Labour Relations Act, the Employment Equity Act, the Basic Conditions of Employment Act, the Skills Development Act, or the National Minimum Wage Act require conciliation. This process allows for a speedy resolution of labour disputes. As conciliation is a voluntary process, parties are not required to attend the process.
In terms of Rule 13(1) and (2) of the CCMA rules, when a party on whose behalf a matter has been referred fails to attend, the commissioner may –
- continue with the proceedings,
- adjourn the conciliation to a later date within the 30-day period; or
- conclude the proceedings by issuing a certificate that the dispute remains unresolved.
In exercising discretion in terms of the above, a commissioner should take into account, amongst other things –
- whether the party has previously failed to attend a conciliation in respect of that dispute;
- any reason given for that party’s failure to attend;
- whether conciliation can take place effectively in the absence of one or more of the parties;
- the likely prejudice to the other party of the commissioner’s ruling; and
- any other relevant factors
Conciliation hearings may occur in person, telephonically or through an online digital platform. The conciliation meeting is private and confidential between the parties and is not recorded. The discussions between the parties are intended to find solutions and are without prejudice and may not be used against any of them in subsequent proceedings unless agreed to in writing by the parties or ordered by a court of law.
If a party that referred a dispute fails to attend a conciliation meeting for whatever reason but has not withdrawn the dispute, a commissioner must issue a certificate indicating that the dispute remains unresolved. That certificate merely signifies that the dispute remains unresolved, and this has no bearing on the merits of the dispute.
Although many disputes cannot be resolved at conciliation, for a variety of reasons, we always encourage employers to attend the process, either in person or by sending a representative to attend on their behalf. In this regard, only employer’s organisation officials may represent employers during the conciliation process.
Some of the benefits of attending the conciliation process include:
- The matter can be resolved with parties agreeing to terms that both find acceptable;
- Resolving the dispute at conciliation will often not result in a significant amount of wasted time. The process is usually completed within an hour. Arbitrations often take many days to conclude;
- The parties have an opportunity to understand the other party’s case, which assists with the preparation for arbitration;
- Various jurisdictional points can be raised during the conciliation process, which will save the employer wasted time at a later date.
The benefits of attending the conciliation process far outweigh the drawbacks, and as a result, we encourage members not to forfeit the opportunity to attend for the abovementioned reasons.
Article by: Marco Horak
Dispute Resolution Official – Cape Town