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 The Labour Consultancy.
THIS week, This week Labour Guides' Rael Solomon takes a look at dispute resolution & the Labour Relations Act.
Mr Shear says that despite all the attempts to improve communication and the exchange of documentation and information etc., it is inevitable that in the employment area, disputes and conflicts will arise. This is not only normal, it is to be expected and is quite healthy. In the old system and aggrieved employee or trade union would have to follow a fairly complex and lengthy procedure before being able to refer a dispute to the Industrial Court the employee concerned would have to wait quite a long time before his or her case was placed on the Court roll. But, this was not necessarily the end of the story. If a party was unhappy about the outcome of the case then that party, if it could afford it, could take the decision of the Industrial Court on appeal. If the appeal was unsuccessful, it could mean that the employee was out of work for between one to one-and-a-half year before getting his job back and obtaining compensation. This was found to be unacceptable. The Industrial Court is now to be replaced by a new dispute resolution system and the procedure to refer a matter for conciliation and arbitration has been dramatically simplified and expedited. The Industrial Court has been replaced by the Commission for Conciliation, Medication and Arbitration (the Commission). The Commission will attempt to resolve disputes by means of mediation, i.e. it would try and bring the parties together and attempt to settle their differences. It may also perform what is called ‘a fact finding exercise’, i.e. It will gather all the information available in the process of resolving the dispute. If the parties are not successful in settling their dispute, the case may then be referred to the Commission for arbitration. The arbitrator’s decision is final. In other words, no further time (and expense) will be spent on appeals. In addition to its mediation and arbitration functions, the Commission may also:
Commissioners employed by the Commission are to be employed on the basis of their knowledge and experience of Labour Law and Industrial Relations matters. In terms of the Act they are obliged to be and remain completely independent and neutral. The Commission is required to perform a very important role in the implementation of many of the new structures of the new Act as well as in its dispute resolving functions. The Commission for Conciliation, Mediation and Arbitration is central to the effective functioning of the New Labour Relations Act. In the absence of collective agreements to the contrary, or in the absence of private agreements, most labour disputes must first be referred to the Commission for Conciliation, and in many cases for arbitration. All cases concerning dismissals connected with misconduct or incapacity must be resolved by arbitration. This is also the case where an employee is not aware of the reasons/s for dismissal, or in cases of what are called constructive dismissals, i.e, when an employer has made the working relationship intolerable and the employee believes he or she had no alternative but to resign. The Act states that in attempting to conciliate a dispute the Commissioner may use a mediation process, or conduct a fact finding exercise, i.e. to gather an analyse facts and information to assist the parties in resolving the dispute, or make recommendations to the parties which are not binding upon them. A little more needs to be said about mediation. Mediation is a process where an independent neutral person will attempt to assist the parties in a dispute to resolve their dispute. The mediation process may take place in the presence of both parties or the mediation may choose to consult with each party separately and then together. The method will depend on the circumstances. But, what is important is that the parties should be able to express themselves through the mediator without any fear of being bound by his or her statements. In other words, it must be made clear to all parties in the conciliation process that whatever is said by them may not be used in later arbitration or court proceedings. No party may be represented by a lawyer during the conciliation process. He or she may only be represented by a co-employee or union or employer organisation official or director if the party is a company. If the dispute is not resolved by means of conciliation, the dispute must be referred to the Commission for arbitration. A person may be entitled to give evidence at the arbitration, call witnesses and question the other party’s witnesses. If the dispute concerns dismissal for misconduct or incapacity a party is only entitled to legal representation if the Commissioner and the other parties consent. The commissioner will usually consent to legal representation if the matter is complicated and/or if fairness and justice requires representation. It may be argued that it is everyone’s constitutional right to have legal representation, but the Act does not give an automatic right. In all cases persons in an arbitration may be represented by a co-employee or member or official of a trade union, employers’ organisation or director, if the party is a company. In cases where the arbitration concerns is matter not related to dismissal for misconduct or incapacity, a person is entitled to legal representation. The reason for not allowing legal representation as a matter of right in the cases mentioned above is to allow for quicker less complicated and cheaper arbitration. We hope that not too much time an expense will be spent on arguing whether a party is or is not entitled to legal representation. In addition to conciliation and arbitrations concerning alleged unfair dismissals, the Commission also has the responsibility to deal with matters concerning organisational rights, i.e. the representivity of trade unions, access by unions to employers’ premises, stop order facility rights and disclosure of information. These functions are crucial to ensure that the rights of freedom of association and the ability to engage a meaningful collective bargaining are protected. Apart from its role as conciliator and arbitrator the Commission also has a role to play as a facilitator. This means that if it is requested to do so the Commission must assist parties to a dispute to establish mechanisms and procedures in terms of the Act. For instance, it may be required to assist the parties in establishing a statutory council, in deciding who should or should not be included in a statutory council. It might be called upon to assist parties in establishing a workplace forum and drawing up its constitution; or in establishing rules for the conducting of a picket. It is quite clear from reading the short description of the duties and functions of the Commission why we describe the Commission as being central to the effectiveness and success of the new Act.
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