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 The Labour Consultancy. THIS week, Rael Solomon examines what happens when a dispute taken through the conciliation process.
Within 30 days of referral, both the employer and the employee should be advised of a date, time and room number for a conciliation hearing. The CCMA will appoint a commissioner who will meet the parties behind closed doors in an attempt to reconcile their differences and resolve the dispute in the two hours allocated for a conciliation hearing. The proceedings are informal and discussions are held without prejudice - i.e. the parties may not be penalised at another stage as a result of anything said at the hearing. Should the conciliation process, with the active mediation of the commissioner, fail, all records are then destroyed and the employee may then request arbitration. The services of the CCMA are provided free of charge. The employee may be assisted by a co-employee or a member of a bona fide trade union. Neither party is allowed legal representation unless this is agreed to by both parties and the commissioner. The employer may be assisted by an official of a bona fide employer's organisation of which the employer is a member. The bona fides will be questioned because many consultants and lawyers try to bypass the “no legal representative” ruling. To prepare for the hearing, both parties should make notes of all the points they believe are important to their cases and prepare a summary of their case in chronological order. Witnesses may not be called. Records of statements made by interested parties and details of any disciplinary hearings prior to the dismissal should be summarised, so that they may be easily referred to by the parties during the discussions and negotiations. It must again be stressed that the proceeding are very informal. During conciliation the commissioner may only assist the parties in resolving their differences. He cannot make a judgement. Both parties are well advised to read up on the relevant clauses of the Labour Relations Act 66 of 1995, or seek professional advice where deemed necessary, so they may better state their case. Proper presentation and emphasis of the consequences to an employer of what might happen if the conciliation fails, is the best incentive to reach a settlement. The commissioner will try to mediate the dispute by pointing the parties in a direction which will allow them to negotiate an agreement. The commissioner may enter into separate discussions (caucus) with each party (in a separate room) in an effort to promote the conciliation process. The parties may similarly ask to caucus with a legal representative or another adviser who has been required to wait outside the room while conciliation proceedings are underway. The employee must be clear what he wants from the employer in the conciliation process. For example:
Should the mediation be successful, the commissioner will proceed to record the points agreed to in writing. Both parties must sign copies of the agreement. Should the employer not comply with the points agreed, the employee may arrange to make the agreement an order of the labour court. This means that the employee can then proceed to execute on this order. Should mediation fail, the commissioner will issue a certificate to both parties confirming failure. The employee may then fill in a form LRA 7.13 Section 136 of the Labour Relations Act 66 of 1995 requesting arbitration. A copy of the form, together with the certificate of failure should be submitted to the CCMA. The employee must also attach proof that copies were sent to the employer - usually by registered post, fax, or by personal delivery duly acknowledged or signed for by the employer. Next week Labour Guides will take you step-by-step through the arbitration process.
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