Disputes are set down for conciliation, following a referral of a dispute to the CCMA or Bargaining Council.  Conciliation is an informal process and both parties are encouraged to attend.  The CCMA rules state that the process is confidential and is held on a “without prejudice” basis.  This means that what is discussed at conciliation may not be referred to in any subsequent proceedings, such as arbitration.  Conciliation usually begins when both the employee and the employer are present.  The parties are each given an opportunity to present their case and state what relief they are seeking from the process and why the dispute should be resolved in that manner.

The conciliating commissioner may actively participate by giving the parties advice or an assessment of the merits of the matter in an attempt to resolve the dispute.  They, however, should refrain from going too far and try to force parties to make a decision.  The Constitutional Court in Myathaza v Johannesburg Metropolitan Bus Services (SOC) Ltd t/a Metrobus & others (2017) 38 ILJ 527 (CC) held that “[t]he conciliator has no power to make any decision on the merits of the dispute.  His or her role is simply to facilitate the conciliation process between the parties and, at the end of the process, certify that the dispute remains unresolved or help the parties formulate an agreement that reflects the terms of the agreement between them.”

The whole purpose of conciliation is to resolve disputes by agreement between the employer and the employee.  The parties are in control of the outcome of the conciliation process, and more often than not, it requires compromises from both sides in order for a dispute to be resolved at conciliation.  If a dispute remains unresolved after conciliation, the conciliating commissioner will issue a certificate of outcome confirming the dispute remains unresolved.  Parties may, between themselves or with the assistance of their representatives, continue their attempts to resolve the dispute, subsequent to the certificate of outcome being issued.

Article by: Chanel Snyman

CEO Regional Manager – Port Elizabeth