WHAT IS CONCILIATION
Conciliation is a process under the direction of a commissioner in which parties endeavour to reach agreement with a view to settling a dispute. Conciliating commissioners cannot compel parties to settle; at most they can offer advice, which the parties are free to accept or reject. Conciliation need not actually take place before the conciliating commissioner issues a certificate.
Must a matter actually be conciliated?
The LRA provides that an employee may refer to a dispute for arbitration if the CCMA has certified the dispute remains unresolved, or if 30 days have elapsed since the matter was referred for conciliation, unless the parties have agreed to an extension of that period. If either of these requirements is satisfied, an arbitrator has no discretion to refuse to arbitrate the matter. A certificate issued by a commissioner or council stating that a dispute remains unresolved is ‘sufficient proof that an attempt has been made to resolve that dispute through conciliation.
The referral is affected by the completion of a simple form, 7.11 in which the referring party is required to provide certain details. Recognised representatives may sign on behalf of the parties. These include attorneys (but not candidate attorneys) and officials of the (registered) trade union or employers’ organisation of which the referring party is a member. Labour consultants may not refer disputes on behalf of the clients.
When the dispute must be referred?
The LRA stipulates that dismissal disputes must be referred for conciliation within 30 days of the date of the dismissal or within 30 days of the date on which the employer takes the final decision to dismiss or uphold the dismissal. Unfair labour practices disputes must referred within 90 days of the date on which the employee became aware of the act or occurrence which constitutes the alleged unfair labour practice. If the referral is out of time, the referring party must apply for condonation. Late referrals should be accompanied by a separate application for condonation, preferably on affidavit. Applications for condonation should set out the reason for the delay and deal with prospects of success of the main application, as well as the prejudice that will follow (or not follow) if condonation is or is not granted. The other party must be given the opportunity to appose condonation, should it wish to do so. Orders permitting or refusing condonation may be taken on review, and will be set aside if commissioners have failed properly to consider all the issues they are required to consider, or have misconstrued evidence, or have not complied with the rules of natural justice.
Service of documents
In terms of the CCMA rules, ‘serve’ means to hand a copy of the completed referral document to the party concerned or an authorised representative; to telefax or telex it to the party’s number; or to send it by registered post.
Who may attend?
The CCMA rules, state that parties may appear in person, or be represented only by a director or employee of that party, or in the case of a closed corporation, a member, and by ‘any member, office-bearer or official of that party’s registered trade union or registered employers’ organisation. The barring of legal representatives from conciliation meetings applies only to their physical presence. Nothing prevents the parties from consulting lawyers before or during the conciliation process, provided they are not physically present.
Consequences of non-attendance
Where the defendant party fails to appear in person, or send a representative, the commissioner may either certify the matter unresolved. The CCMA and bargaining councils have no power to compel parties to attend conciliation meetings.
Notice and duration of conciliation
The commission must, in terms of its rules, give the parties at least 14 day’s notice of a conciliation meeting, unless the parties agree to a shorter period. The LRA limits the period in which the commission may conciliate matters to 30 days, unless the parties agree to extend the period. Commissioners are not empowered to extend this time period unilaterally. This means that, once the period lapses, the referring party is entitled as of right to a certificate stating that the dispute has not been resolved, or even to refer the dispute to arbitration or adjudication without a certificate.
The conciliation process
CCMA rules permit the conciliating commissioners to resolve disputes without enrolling formal conciliation meetings, even by contacting the parties telephonically. When all parties are present, the process usually commences with the respective parties stating their case. Commissioners are entitled to offer advice to parties, usually in ‘caucus’. Conciliating commissioners must seek to steer parties to a mutually agreed outcome. While commissioners must be flexible in their approach, they must remain impartial. Once the parties inform the commissioner that they have reached settlement, and of the terms of the settlement, that is the end of the matter. All the commissioner is required to do is to record the settlement and certify that the dispute has been resolved.
The CCMA rules expressively provide, with good reason, that conciliation proceedings are confidential. They are also conducted on a ‘without prejudice’ basis.
Once agreement is reached, the commissioner must formally record its terms, and the memorandum should be signed by the parties. Nothing prevents parties from concluding settlement agreements privately. If this happens, the CCMA should be informed so that the case can be closed.
If conciliation fails, or 30 days after the referral or any further period agreed between the parties, the conciliating commissioner must issue a certificate stating whether or not the dispute has been resolved, serve it on the parties and file the original certificate with the commission. Form LRA 27 requires the commissioner to state that the dispute has not been resolved, and to specify the nature of the dispute. A certificate is deemed to have been issued when a signed copy is made available to the parties. Conciliating commissioners have no power to dictate to parties how they should pursue their disputes , and their ticking of the various boxes on the pro forma certificate does not constitute ‘rulings’ which bind other commissioners.