Guidelines and preparatory steps for CCMA dispute resolution processes (Conciliation)
The Act requires that all disputes falling within its jurisdiction must be conciliated. Conciliation is a relatively informal and flexible process in which an independent third party assists the par ties in dispute to reach an agreement. It is a quick and inexpensive way of settling a dispute. It is also private and confidential, being conducted on a without prejudice basis. No party may refer to any statements made at conciliation proceedings during any subsequent proceedings, unless the parties have agreed to this in writing.
S135(3) of the Act outlines the conciliation process, stipulating that the commissioner must determine a process to attempt to resolve the dispute, which may include: mediating the dispute; conducting a fact - finding exercise; and making a recommendation to the parties, which may be in the form of an advisory arbitration award.
Conciliation proceedings in respect of more than one dispute involving the same parties may be consolid ated. In terms of s135(3)(A) of the Act, where a commissioner has been appointed in respect of more than one dispute involving the same parties, the commissioner may deal with all the disputes in the same proceedings.
It is important to bear in mind that t he sooner a dispute is addressed and settled the better it is for all parties involved. The dispute will not simply go away, and each time a respondent has to deal with a dispute it is a time - consuming and hence costly exercise. This means it is in the interests of a respondent to find a solution to the dispute at the pre - conciliation or conciliation stage.
The Act requires parties to exhaust internal procedures before a dispute is referred to the CCMA. Ensure that all internal procedures have been exhauste d prior to a conciliation hearing being held, and that every effort has been made to settle the dispute directly with the employee involved and his/her trade union representatives.
To facilitate internal problem solving and dispute resolution, ensure that suitable workplace procedures are in place. Effective and legitimate procedures limit disputes arising and facilitate their resolution at the workplace. Common workplace procedures include probation procedures, disciplinary procedures for misconduct, inca pacity procedures for poor performance, incapacity procedures for ill health, and grievance procedures.
In the case of organisational rights disputes, check that the provisions of S21(1), (2) and (3) of the Act have been complied with. Unless the provisions of S21 have been complied with a dispute referred is premature.
Where a mutual interest issue is involved make every effort to ensure that the negotiation process is exhausted.
In the case of an unfair discrimination dispute ensure that an attempt has been made to resolve the issue internally in compliance with S10(4)(b) of the Employment Equity Act 55 of 1998 (EEA).
In the case of dismissal disputes ensure that all the requirements of the Act have been followed. Depending on the nature of the dismiss al, this includes S189 "dismissals based on operational requirements" and the associated code of good practice, or schedule 8 "code of good practice: dismissal". Also ensure the requirements of Chapter Five "termination of employment" of the Basic Conditio ns of Employment Act 75 of 1997 (BCEA) have been followed.
Forward written notice to the CCMA if it is agreed to withdraw the referral, or settlement with the applicant is reached prior to the conciliation hearing.
On receipt of the referral for conciliat ion, check that the CCMA has jurisdiction for the dispute being referred. If there is a jurisdictional issue arising from a referral, forward written submissions to the CCMA and the applicant in adva nce of the conciliation hearing .
If at any stage during the conciliation proceedings it becomes apparent that there is a jurisdictional issue which has not been determined, the commissioner must require the referring party to prove that the Commission has the necessary jurisdiction to resolve the dispute throug h conciliation.
S191(1) of the Act requires dismissal disputes to be referred within 30 days of the dismissal. Take note that the 30 - day period is ordinary calendar days.
Where a referral is late the applicant must apply for condonation. If this is the case, the referring party/parties must at the time of the referral comply with the provisions of rule 19 and set out the grounds on which condonation is sought by attaching to the referral document details of the following: the degree of lateness; the reasons for the lateness; the referring party's prospects of succeeding with the referral and obtaining the relief sought against the other party; and the balance of convenience, including any prejudice to the other party.
Once notice of a conciliation hearing has been received, avoid requesting postponement. The CCMA Rules do not provide for postponement at conciliation, and generally an application for postponement will not be considered. If the parties require time to settle then the conciliation will be pos tponed to a fixed date for the filing of a settlement agreement. Whether or not filed, a certificate will be issued on the postponed date declaring the dispute resolved or unresolved.
In conciliation proceedings a party to the dispute may appear in person or be represented only by a director or employee of that party; or any member, office bearer or official of that party's registered trade union or registered employers' organisation.
Only representatives referred to in S135(4) of the Act may attend the co nciliation hearing and represent parties. The commissioner has discretion to allow other persons than the parties and their representatives to attend the hearing. This may be a party's legal representative, but s/he will not be entitled to speak on behalf of a party.
Make every effort to a ttend the conciliation hearing. 'No - shows' undermine the Act's objective of quick and fair dispute resolution, remove any chance of settlement, and are a significant drain on CCMA resources. Not participating generally prolongs t he resolution of the dispute.
In the eventuality of any disagreement regarding the nature of the dispute, the conciliating commissioner may decide upon the nature of the dispute.
In the event of disagreement regarding the nature of a dispute, the conciliating commissioner must issue a certificate of non - resolution in respect of the dispute as identified by the commissioner in the conciliation process.
Ensure representatives are well versed with the case, and have settlement proposals and a mandate. Endeavour to develop a creative mandate enabling a range of settlement options.
Schedule sufficient time to allow for the hearing to proceed over the allocated time frame, where necessary and possible. This could facilitate settlement.
Bring documentation that might assist in clarifying issues, including documentary evidence. However, leading evidence through witnesses is not carried out at conciliation.
Depending on the nature and complexity of the dispute, the CCMA may decide to conduct a telephonic conciliation. A commissioner or case management officer would attempt to resolve the matter telephonically instead of scheduling and holding a hearing. Be open to seeking a settlement in this manner, as this will mean that the dispute could be settled immed iately without the need for a hearing.
Should the dispute be settled through telephonic conciliation, an outcome certificate would be issued and a settlement agreement drafted for signing by both parties.
Where the dispute is unsettled and the CCMA is satisfied that a reasonable attempt has been made to conciliate the dispute, a certificate of outcome will be issued by a commissioner. Where the next step is the Labour Court, the applicant will be given the option of going through the conciliation process or being issued a certificate of non - resolution to proceed to the Labour Court.
Where the CCMA is not satisfied that a reasonable attempt has been made to conciliate the dispute, the matter will be scheduled for a conciliation hearing.
Where the internal dispute resolution processes have not settled the dispute, settlement at the conciliation stage should be seen as first prize in terms of the dispute resolution process provided by the Act. Conciliation provides for the quick and fair resolution of disputes. The decision - making regarding the outcome lies in the hands of the parties involved, and the conciliation process is uncomplicated. It is also inexpensive, and does not require legal representation.
Conciliation not only effectively resolve disputes, but is can also an important learning process which assists in the reduction of future disputes.
Be prepared to participate in conciliation hearings with a view to engaging with the process and exploring all possible options for settlement. Avoid carrying over any personal tensions with the applicant/s that might have arisen during the internal process, and be prepared to concentrate on finding solutions to the dispute.
Where an agreement is reached at the conciliation hearing, the commissioner will issue a certificate of outcome and a settlement agreement, stipulating the terms of the settlement. A conciliation settlement agreement is final and binding on both parties. If either party does not uphold the terms of the agreement, an application can be made to the Labour Court for the settlement agreement to be made an order of the court.
If the conciliation hearing does not result in a settlement being reached, an outcome certificate will be issued to this effect. The CCMA has 30 days from the date of receipt of the referral in which to bring conciliation to conclusion and issue an outcome certificate, unless the parties agree to extend the period.
The nature of the dispute, as stated on the outcome certificate, will determine whether the case may proceed to CCMA arbitration or to the Labour Court for adjudication.
Date: 2nd June 2014
Legislation: Employment Equity Act 55 of 1998 (EEA)
Basic Conditions of Employment Act 75 of 1997 (BCEA)
Labour Relations Act, 66 of 1995 (LRA)
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