Conciliation is intended to be a flexible, problem-solving process rather than a technical exercise bound by rigid classifications. Yet many employers mistakenly assume that once an employee describes a dispute in a referral form, the case is forever confined to that label. South African labour law has firmly rejected this assumption.
Section 135 of the Labour Relations Act (LRA) empowers a Commissioner to resolve disputes through Conciliation using a process they deem appropriate. This may include mediation, fact-finding, or issuing a non-binding recommendation. Crucially, the Commissioner’s role is not limited to the way a dispute is framed on paper, but to understanding what the dispute is truly about.
This is reinforced by Rule 15 of the CCMA Rules, which allows the certificate of outcome to record the nature of the dispute either as described in the referral form or as identified by the Commissioner during Conciliation. In practice, this means the dispute may evolve once the parties explain their respective versions and underlying grievances.
Employees refer disputes using LRA Form 7.11, and employers often rely heavily on the wording used in that form or reflected in the certificate of outcome. However, the Constitutional Court has made it clear that this reliance can be misplaced.
In September and Others v CMI Business Enterprise CC [2018] ZACC 4, employees initially referred a dispute as one of unfair discrimination under the Employment Equity Act. During the Conciliation, the facts revealed that the employees had resigned due to ongoing racial abuse. Conduct potentially amounting to an automatically unfair dismissal. When the matter later proceeded to adjudication, the employer argued that the dismissal dispute had never been conciliated and that the court therefore lacked jurisdiction.
The Constitutional Court rejected this argument. It held that the decisive issue is not how the dispute was labelled, but whether its substance was canvassed during Conciliation. If the real dispute was explored, even if inaccurately recorded, Conciliation is deemed to have taken place. On confidentiality, the Court confirmed that while Conciliation discussions are generally protected, evidence may be led to establish the true dispute where it is disputed. The referral form and certificate of outcome serve as prima facie proof, but they are not conclusive. To hold otherwise would elevate form over substance and undermine the purpose of Conciliation.
That said, this exercise must remain rooted in fairness to both parties. While an incorrectly characterised dispute does not necessarily render a referral defective in essence, Commissioners are required to weigh the prejudice to the responding employer when determining whether a matter should proceed on an amended basis or be re-referred correctly, possibly accompanied by an application for condonation.
This is not a hard-and-fast rule and will depend on the circumstances of each case, including the arguments raised, the extent of overlap between disputes, and the practical prejudice suffered. For example, where an unfair dismissal dispute is referred but the true nature of the dispute is revealed during Conciliation as a statutory monies claim under Section 73A of the Basic Conditions of Employment Act, the Commissioner may have the power to join or amend the dispute. However, doing so may place the employer at a material disadvantage, as the employer may have attended Conciliation prepared to address dismissal-related facts and merits, only to be confronted with an entirely different claim.
Although Conciliation is an informal process, procedural fairness cannot be disregarded entirely. Employers should not be ambushed by disputes that bear no resemblance to what was referred, particularly where unfair dismissal is not the true nature of the dispute but rather an issue of outstanding statutory entitlements, and equally so in the reverse scenario. In such circumstances, fairness may require that the dispute be correctly re-referred, rather than retrospectively reshaped.
Employers should therefore prepare for Arbitration or adjudication based not only on the wording of the referral form or certificate of outcome, but on the substance of what was actually conciliated. At the same time, employers are entitled to raise objections where a recharacterisation of the dispute causes material prejudice or undermines procedural fairness.
Ultimately, while Commissioners are empowered to look beyond labels to substance, that power must be exercised judicially, with due regard to balance, proportionality, and the purpose of Conciliation. Employers should assess each matter on its merits and seek labour-law advice where disputes shift in nature during Conciliation.
Article by Aletta Eksteen
Dispute Resolution Official at Consolidated Employers Organisation (CEOSA)