The CCMA and Bargaining Councils implement two processes, namely conciliation and arbitration, to resolve disputes.
The purpose of conciliation is to bring the disputing parties together to discuss the issues in dispute with the aim of resolving the matter and reaching an agreement. A conciliation is private and confidential and is not recorded. The Commissioner may assist both parties together and separately to explore ways in which the matter could be resolved in a manner equally acceptable to both parties. If the dispute cannot be resolved, the Commissioner will issue a certificate that indicates that the dispute remains unresolved. Either of the parties thereafter will be required to file a request for arbitration in order to pursue the dispute. If the dispute is settled, the Commissioner will assist the parties in drafting a settlement agreement, bringing the dispute to finality.
Arbitration is a hearing where both parties are given an opportunity to present their cases by leading and presenting evidence in the form of witness testimony and documentary or other forms of evidence. Both parties are also given the opportunity to cross-examine the opposing party’s witnesses. The Commissioner will issue an arbitration award within fourteen (14) days of the finalisation of the arbitration. This award is final and binding on the parties.
A Con/Arb is a combination of the conciliation and arbitration processes. It has the effect that the arbitration hearing will take place immediately after conciliation on the same day. This, in turn, means that the dispute will most likely be resolved or finalised within 30 days after it has been referred. The CCMA and Bargaining Councils must give the parties at least fourteen (14) days’ notice, in writing, that a matter has been scheduled for a Con/Arb.
However, it must be noted that it is possible for either party to a dispute to object to the Con/Arb process by filing a written notice of objection on the other party to the dispute and the CCMA or relevant Bargaining Council. The notice of objection must be filed at least seven (7) days prior to the scheduled date of the matter. An objection to the Con/Arb process has the effect that the matter will be conciliated only and that the arbitration will take place on a different date and only if conciliation fails.
In certain types of disputes, objection to the Con/Arb process is not permitted, such as:
- Dismissal and unfair labour practice disputes relating to probation.
- Compliance Order disputes.
- Section 73 A disputes.
An Employer must prepare thoroughly for an arbitration. Witnesses must be secured to provide testimony at the arbitration and may need to be subpoenaed in some instances. The relevant documentary and other evidence need to be collected and perused. An Employer should also prepare responses to the other party’s version and consider the case law applicable to the dispute.
Fourteen (14) days is very little time to prepare for an arbitration thoroughly. It is thus advisable to object to a Con/Arb process when it is received. Attending the conciliation only would also give an employer insight into what evidence the other party will introduce at an arbitration; this provides the employer with the opportunity to reassess his/her position or acquire different witnesses to address any concerns. It must also be considered that the CCMA and Bargaining Councils must give parties at least twenty-one (21) days’ notice of arbitration, giving an employer more time to prepare for the process. There is also the likelihood of an applicant party deciding not to refer the dispute for arbitration after the conciliation took place.
Article by: Ruaan Heunis
Dispute Resolution Official – East London