Most employment disputes in South Africa are referred to the CCMA for resolution. The first stage of resolutions is the process of conciliation. If the matter remains unresolved, the dispute may either be referred for what is called a CON/ARB or Arbitration or in certain cases to the Labour Court. But, what are these processes and how should you prepare and conduct yourself in the proceedings.
Source: A Guide to the Labour Law by Larry Shear and Imthiaz Sirkhot
Remember an arbitration decision is final and binding on the parties. There is no right of appeal. Therefore, how you present your case can have a crucial bearing on the outcome.
Simply put, if a person believes they have been unfairly dismissed or subjected to an alleged unfair labour practice, they have 30 days within which to refer a dispute to the CCMA. The same applies to referring a matter to a Bargaining Council. There are certain cases, which will finally land up in the Labour Court. However, all cases must first be referred to the CCMA for conciliation.
Conciliation is a process whereby an independent person – a CCMA commissioner- will assist the parties in trying to find a solution or a settlement of their dispute.
This process should be completely non-threatening. It is also called mediation. Both parties must be given an opportunity to state their version of events. It is a good opportunity for each party to learn and understand the other side’s point of view. The point to understand is that each party must merely tell their story.
But remember, in a conciliation no evidence is presented. No decision will be made in relation to the strength or weakness of either case. The Commissioner will only guide the parties. There is no obligation to reach an agreement. Obviously, if the case is settled, that is the end of the matter. The parties, with the assistance of the Commissioner, will write an agreement. It is advisable to sign the agreement immediately afterwards, to ensure neither party changes their minds. The Commissioner will keep the original and a copy should be given to each party.
There is no time limit for a conciliation. The process should go on until a settlement is reached or until it is apparent no settlement is possible.
If the dispute is not settled, the Commissioner will issue a certificate of “Non Resolution”. It is important to note the entire conciliation process is what is called “without prejudice” or off the record. This means that every thing stated during the conciliation may not be repeated or used as evidence in an arbitration or court case. This would be strictly forbidden. The purpose of this principle of course, is to encourage the parties to speak openly, either to one another or privately to the Commissioner. The Commissioner may only repeat what has been said with the express permission of that person. From this it can be seen that it is quite common for the commissioner to separate the parties. The purpose is to encourage both parties to speak their minds – without any fear of intimidation. We would like to stress that no one should be threatened by the conciliation process.
If the dispute is not resolved and after the Commissioner has issued a Certificate of non-resolution, the referring party may refer the matter to Arbitration.
Arbitration is a very different procedure. Whereas in Conciliation the role of the Commissioner is to assist the parties by being non judgmental, in an Arbitration the duty of the arbitrator is to listen to all the facts (evidence) and to make a decision based on that evidence. Remember, that the decision is final and binding on the parties.
When you receive a notification concerning the date and time of the Arbitration, diarise the date.
Then, as soon as possible begin your preparation. If you are an individual i.e. a dismissed employee or the employer, begin reconstructing all the facts in your mind. It is always a good idea to write down a statement of events in order to jog your memory. You can add to this as you remember more.
If the employer is a business or a company, you may not have personal knowledge of all the facts. First, you must identify who will be responsible for handling the matter.
That person must then meet with all people involved with the incident/s. Once again, it is advisable to write down a statement. If more than one person was involved, identify witnesses who may be required to give evidence at the Arbitration. Advise the witnesses of the Arbitration date.
After speaking to the witnesses, identify if any documents are relevant. Such documents could be for example letters, email, sms’s, maps, photographs, diary extracts etc. It all depends on the facts of each matter. Remember, evidence can be both oral and written. In other words, every document used at the Arbitration becomes evidence in the Arbitration.
The important thing is before approaching the Arbitration you must know what case you are to present. Don’t leave anything to chance. Remember, in a dismissal or unfair labour practice case, the employer must prove it did not act unfairly.
This means the employer must present enough evidence to prove that it acted fairly i.e. that it had sufficient grounds to dismiss and followed a fair procedure.
Then, the first party (usually the employer) will supply its evidence. This means telling the story in a clear manner. Just relate the facts, which are relevant to the case.
Try and remember what you have to prove. The employer will try and prove that it acted fairly and with good reason. The purpose of this evidence is to prove the facts upon which you wish to rely.
The other side will be given an opportunity to cross-examine the witnesses.
The purpose of cross-examination is two-fold.
To discredit the witness by telling the witnesses what part of the evidence is not correct. If necessary, you have the right to suggest that a witness is not being completely honest.
The second purpose is to put your own version to the witness so, that they can offer a comment. The reason for this is when you testify, the first witness cannot say they were taken by surprise, or not given a chance to deal with your version.
When the cross-examination is finished, you will be given a chance to re-examine your own witness.
What this means is that you can only deal with issues and questions raised in cross-examination. You may not raise new issues. The purpose is to repair any damage done during cross-examination.
This entire process is repeated in respect of each witness.
When the first party has concluded all its evidence, the other party will lead its witnesses. The same procedure discussed above will apply.
When the evidence is concluded, each party will then have the right to give a closing statement. The purpose is to briefly summarise the evidence presented and to point the Arbitrator in the direction of the result that you require. Just stick to the evidence. Don’t rely on your imagination.
That is why it is important to keep accurate notes during the whole process, even if it takes extra time. Keep your notes afterwards as your personal record. They may become important if you want to challenge the outcome of the Arbitration.
Arbitration is a process which requires thorough preparation and a degree of common sense in order to best persuade the Arbitrator to rule in your favour.