Whenever a dismissal dispute is referred to the CCMA or bargaining council for adjudication, the dispute is automatically scheduled for a con/arb process in terms of section 191 (5A) of the Labour Relations Act. Certain disputes, such as those relating to unilateral changes to working conditions, mutual interest, bargaining, discrimination and operational requirements, may be scheduled for conciliation only as certain jurisdictional issues must first be clarified.
For dismissal disputes, this means that the arbitration will ensue directly after the dispute has been declared unresolved by the conciliating commissioner and the same commissioner will preside for both processes.
Conciliation is an off the record, without prejudice process, where the main focus is on finding a mutual resolution for the dispute. The most important aspect to bear in mind regarding the conciliation process, is that it is voluntary, and therefore no party can be forced to enter into any agreement against which they are opposed. At conciliation, the power therefore rests with the parties to find the solution which suits them best and the commissioner has no powers to force any party into any settlement.
Arbitration can be described as the formal “court-case” side of the proceedings, where the main focus is on evidence in the form of witness testimony, supporting documents and video/audio footage. At arbitration, the commissioner has absolute power over the proceedings and he/she solely decides what the outcome of the dispute will be.
It is however possible for any party to the dispute to object to the con/arb process in terms of section 191(5A)(c) of the Labour Relations Act read together with section 17(2) of the CCMA rules.
Once a party has lodged a compliant objection in terms of the rules, the conciliating commissioner loses the power bestowed upon him by section 191(5A) to commence the arbitration proceedings directly after the dispute has been declared unresolved at the preceding conciliation. This in essence means that as soon as a compliant objection is lodged, the matter is set down for a conciliation only and the arbitration will take place on a different date and only if the conciliation fails.
There are various advantages to objecting against the con/arb process which includes:
(1) Employees will give a brief summary at conciliation of their dispute which gives the employer insight into what evidence to bring to the arbitration;
(2) An employer only receives 14 days notice for con/arb proceedings, whereas 21 days notice are afforded for arbitration proceedings, giving employer more time to prepare for the process and arrange for witnesses to be present;
(3) During their role as conciliating commissioners, the commissioner will do a risk assessment with the parties, giving the employer valuable insight into how the arbitrating commissioner will assess the dispute. This gives the employer the opportunity to reassess his/her position or maybe acquire different witnesses to address these concerns;
(4) As the arbitration proceedings will not ensue directly after the matter is certified as unresolved, the employee will again have to complete a 7.13 application form in order to refer the matter to arbitration. There is therefore a chance that the Applicant may decide to desert the dispute and not refer the matter any further, especially in instances where the conciliating commissioner has informed him of slim prospects of success. As employees have to travel to the CCMA, and in instances where they have already been re-employed take off from work, there is also the chance that they will desert the dispute as they do not wish to travel to the CCMA a second time.
In order for an objection to be compliant in terms of rule 17(2), it must be served on the other party and the CCMA at least 7 days before the con/arb takes place. It is therefore of the utmost importance that any referral received by the employer is forwarded to his CEO representative as soon as possible, so that the necessary documentation may be drafted and served in order to effect a compliant objection.
Article by: Casper Geustyn
CEO Dispute Resolution Official – Cape Town