Wednesday, February 21, 2024

The art of conciliation

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Estimated reading time: 4 minutes

  • Conciliation is a process before the CCMA, a bargaining council or an accredited agency, where a conciliator will try to assist parties (employer and employee) to resolve a workplace dispute.
  • The process is private and confidential, off the record and ‘without prejudice’ meaning that nothing the parties say during the process can be held against them in another process, unless by agreement or by an order of a court.
  • Conciliation is a free process that provides for the quick and fair resolution of disputes. It is an opportunity for the parties to listen to one another and to attempt to agree on an outcome that will bring closure to the dispute.
  • It is important to note that the conciliation process at the CCMA is intended to be informal, flexible and less adversarial. The focus is on resolving the dispute amicably and reaching a fair outcome for both parties.

The Commission for Conciliation, Mediation and Arbitration (CCMA) in South Africa is an independent statutory body that facilitates the resolution of workplace disputes through conciliation, mediation and arbitration. It was established in terms of the Labour Relations Act, 1995 (Act 66 of 1995) (LRA) and serves as a forum for dispute resolution between employers and employees.

When a dispute arises, either party can approach the CCMA. Conciliation is the first step in the dispute resolution process and aims to reach a mutually acceptable settlement without going to court.

What is conciliation?

Conciliation is a process before the CCMA, a bargaining council or an accredited agency, where a conciliator will try to assist parties (employer and employee) to resolve a workplace dispute. It is a compulsory process by law; however, the outcome is voluntary as it is the right of parties to decide whether they wish to settle the dispute and on what terms.

The process is private and confidential, off the record and ‘without prejudice’ meaning that nothing the parties say during the process can be held against them in another process, unless by agreement or by an order of a court.

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Pre-conciliation

The commissioner or a conciliator may contact parties by telephone or other means, prior to the commencement of the conciliation in order to seek ways to resolve the dispute. If the dispute is resolved, the outcome is also binding.

Advantages of conciliation

Conciliation is a free process that provides for the quick and fair resolution of disputes. It is an opportunity for the parties to listen to one another and to attempt to agree on an outcome that will bring closure to the dispute.

Conciliation process at the CCMA

  • Filing the dispute: The party initiating the process must complete and submit the CCMA’s prescribed forms within the stipulated timeframe. The other party is then notified of the dispute and given an opportunity to respond.
  • Selection of a commissioner: The CCMA appoints a commissioner, who acts as a neutral third party to facilitate the conciliation process. The commissioner schedules a date, time and venue for the conciliation hearing.
  • Preparing for conciliation: Both parties gather relevant documents and evidence to support their case. They may also engage in pre-conciliation negotiations or attempt to resolve the matter informally.
  • Conciliation hearing: The conciliation hearing takes place at the CCMA office or an agreed-upon location. The commissioner facilitates discussions between the parties, encouraging dialogue and exploring possible solutions. The aim is to find a mutually acceptable resolution to the dispute.
  • Settlement agreement: If the parties reach a settlement during conciliation, they record the terms of the agreement in writing. This settlement agreement is legally binding and enforceable.
  • Certificate of outcome: If a settlement is reached, the commissioner issues a certificate of outcome confirming the resolution of the dispute. This document serves as proof that the matter has been resolved.
  • No settlement reached: If the parties fail to reach a settlement during conciliation, the matter may proceed to arbitration, where a decision will be made by an independent arbitrator.

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Applying for conciliation

An employee may apply for conciliation using a LRA 7.11 referral form within:

  • Thirty days of the date of dismissal.
  • Ninety days of the date of an unfair labour practice.
  • Six months of the date of an act of unfair discrimination.
  • Six months after the act or omission referred to in section 198D (1) of the LRA.

A late referral will require an application for condonation.

It is important to note that the conciliation process at the CCMA is intended to be informal, flexible and less adversarial. The focus is on resolving the dispute amicably and reaching a fair outcome for both parties. – Anneline Scriven, senior legal advisor, LWO Employers Organisation

For more information, send an email to Anneline Scriven anneline@lwo.co.za.

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