UNDERSTANDING THE PROCESSES OF THE CCMA
(Commission for Conciliation, Mediation and Arbitration)
1. The first process that is conducted by the CCMA is conciliation.
The conciliation hearing is a process where a Commissioner facilitates possible settlement discussions between the parties.
The Commissioner does not have any powers to make decisions but may merely make recommendations regarding a settlement.
The CCMA does not grant postponements of conciliation proceedings.
If an employee fails to attend a conciliation process the dispute can still be referred by the employee to the next stage, be it arbitration or Labour Court.
A Certificate of outcome will be issued certifying that the dispute remains unresolved.
If the matter is settled, the Commissioner will draft a settlement agreement recording the terms of the settlement. Hereafter, the Commissioner will explain the terms of the settlement to both parties and obtain both parties signature. A copy of the settlement agreement will be issued to the parties for their record and a certificate of outcome will be issued certifying that the dispute is resolved.
2. The second process that’s conducted by the CCMA is arbitration.
Arbitration is a more formal process than conciliation.
The Commissioner will record the proceedings.
The Commissioner makes a formal decision in terms of handing down an arbitration award.
The arbitration award is legally binding on both parties, although the parties can apply to the Labour Court for a review if they are dissatisfied with the arbitration award.
3. The CCMA may set a dispute down for con-arb. The CCMA is inclined to set it down for this process to save time and expense.
A con-arb process is a combination of conciliation and arbitration.
The first stage of the process is the conciliation process. Should the matter not be resolved in conciliation, the arbitration stage proceeds immediately thereafter.
Parties to a con-arb are advised to attend the hearing with all their witnesses and the documented evidence they will need to prove their case.
The con-arb process is compulsory in only 2 instances, namely,
where the dispute is about dismissal for any reason relating to probation or any unfair labour practice relating to probation.
It also cannot be used for disputes over which the CCMA has no jurisdiction because they are disputes that must go to the Labour Court. For example, the Labour Court will adjudicate group retrenchment disputes or a dispute on the grounds of some form of discrimination. Where the con-arb process applies, a party has the right to object to the con-arb by lodging an objection in writing. Same written notice of objection must reach the CCMA at least 7 days before the date scheduled for the con-arb.
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