Conciliation: A Comprehensive Guide
Conciliation: A Comprehensive Guide
By Nicolene Erasmus
How to refer a dispute to the CCMA
Unless the Act stipulates otherwise, any party to a dispute may refer the matter for conciliation[1]. The referral is effected as follows[2]:
(1) A party must refer a dispute to the Commission for conciliation by delivering a completed LRA Form 7.11 (‘the referral document’).
(2) The referring party must—
(a) sign the referral document in accordance with rule 4;
(b) attach to the referral document written proof, in accordance with rule 6, that the referral document was served on the other parties to the dispute;
(c) if the referral document is filed out of time, attach an application for condonation in accordance with rule 9 (3) read with rule 31.
(3) The Commission must accept, but may refuse to process a referral document until subrule (2) has been complied with.
In Dokoda and others / Truda Snacks (Queenstown)[3] commissioner Thys held with reference to the respondent’s objections that the form was not signed at the designated spot, and that the referral was not dated, that:
“The applicants’ referral was at the very least signed (albeit at the wrong place) and is clearly indicative of the fact that they at all times wanted to pursue their dismissal dispute. Respondent also contended that the applicants’ referral was not dated and that is another reason why the CCMA should not entertain their dispute,
Again, I am of a different opinion and conclude that applicant’s omission to indicate when and where the referral was signed is not in itself a fatal flaw.
What is important and supports the applicants case is the detail that they at least filed their referral within the required 30 day period, for the reason that the papers/evidence dearly establishes that applicants were dismissed on 19 December 2011 and referred their dispute to the CCMA by 17 January 2012.
Bearing in mind that the matter had already progressed to arbitration and as a matter of trite and considering the merits of this case, a little too late to raise the issue of condonation.
An employee’s failure to serve copy of the referral form on employer must be raised during conciliation. An employer cannot raise non-service in attempt to block subsequent adjudication of dispute. The court in P Moeller & Co (Pty) Ltd v Levendal & others[4] held that:
“…the failure to serve the referral may be a material defect in the proceedings. The question is whether in the circumstances of this case non-service of the referral was a material defect. The applicant received notice of the conciliation without protesting about not having received the referral or about enduring any prejudice as a result thereof. There is no evidence that the applicant expressed any interest in knowing what the referral contained until after pleadings closed. If the applicant was aggrieved about not being adequately informed via the referral to engage in meaningful conciliation it should have acted sooner. Of note is the fact that the non-service relates to a referral for conciliation, the outcome of which is entirely voluntary and premised on a genuine desire – even though that may be driven by statute – to resolve the dispute substantively. The applicant’s primary purpose of enquiring into the referral at such a late stage was to ferret out technicalities to obstruct the substantive resolution of the dispute. As the purpose of requiring service of the referral for conciliation was not to conciliate or to address the issues in dispute substantively, the non-service was a formal defect in the proceedings.”
Date of dismissal
The LRA[5] stipulates that dismissal disputes must be referred for conciliation within 30 days of the date of a dismissal or, if it is a later date, within 30 days of the employer making a final decision to dismiss or uphold the dismissal. The date of the dismissal is set by the LRA[6] as the earlier of the date on which the contract of employment terminated or the date on which the employee left the service of the employer.
In FEDCRAW obo Peterson / Edgars Stores Ltd[7] commissioner Moahloli held:
I am of the opinion that it is my duty to interpret the Act in order “ to give effect to its primary objects”, one of which is “ to promote the effective resolution of labour disputes” (section 3(a) read with 1(d)(iv)). I fully agree with the decision in Maphopha v FAWU [1994] 11 BLLR 48 (IC) that the 30 day period runs from the date of the outcome of an employee’s appeal, as opposed to his “ actual ” date of dismissal. The period between the date of dismissal and appeal should be condoned on the ground that an applicant is expected to pursue internal/domestic remedies prior to approaching the CCMA for conciliation.
I do not find myself amenable to punishing an employee who “ delayed” to prosecute her case before the CCMA because she was waiting for the exhaustion of existing internal remedies. She did not wantonly neglect her case. Surely the aim of the 30 day limit is to avoid unnecessary and deliberate delays, rather than to punish the innocent on strictly technical grounds.
Ironically the employer himself seems to have condoned the delay by saying that the employee had the right to appeal to the CCMA, after notifying her of the appeal outcome.
What notice must be given of the conciliation meeting?
The Commission must notify the parties in writing of a conciliation hearing[8]at least fourteen (14) days prior to the scheduled date, unless the parties agree to a shorter period or reasonable circumstances require a shorter period. The time period of fourteen (14) days runs from the date the notification is sent by the Commission. If a notification is sent by registered mail an additional seven (7) days must be allowed. The CCMA may, in addition, give notice by means of short message service.
Representation[9]
In conciliation proceedings a party to the dispute may appear in person or be represented only by—
(i) if the party is an employer, a director or employee of that party and, in addition, if it is a close corporation, a member of that close corporation;
(ii) any office bearer, official or member of that party’s registered trade union or registered employers’ organization;
(iii) if the party is a registered trade union, any office bearer, official or member of that trade union authorized to represent that party; or
(iv) if the party is a registered employers’ organization, any office bearer or official of that party or a director or employee of an employer that is a member of that employers’ organization authorized to represent that party.
Only those persons expressly mentioned may represent parties during conciliation proceedings. In an application for review to set aside the settlement agreement on the grounds that a person not permitted under section 135(4) of the Act attended conciliation proceedings between the applicants and the first respondent. the court in Mavundla & others v Vulpine Investments Ltd t/a Keg & Thistle & others[10]stated:
“Whether the commissioner made a mistake as to his designation, or whether she believed the applicants had agreed to his presence by failing to object, she acted irregularly by allowing Berger to attend the conciliation because the limitation on persons allowed to attend proceedings under section 135(4) of the Act is peremptory and cannot be departed from by agreement, or as a result of waiver. Likewise, if the commissioner made a mistake of fact as to a person’s identity, this mistake is a reviewable irregularity.
[27] The limitation on representation rights at conciliation proceedings contained in section 135(4) of the Act is based on public policy considerations, which Parliament deemed necessary to specifically include in the Act. Some detail around the rationale for this public policy can be found in the “ Explanatory Memorandum on the 1995 Labour Relations Bill”, as well as in section 1 of the Act, which sets out the purpose of the Act.
[28] The explanatory memorandum states that previous conciliation procedures (those in place prior to the enactment of the 1995 Act) were “ lengthy, complex and pitted with technicalities, requiring sophistication and expertise beyond the reach of most individuals and small businesses”.
[29] To achieve the object of a “ simple non-technical and non-jurisdictional approach to dispute resolution” a policy was adopted of permitting only the parties or their collective representatives to attend conciliation proceedings, and excluding all others whether they are the parties’ lawyers or consultants or other interested parties. This policy, it is believed, will ultimately promote the effective resolution of labour disputes, one of the primary objects of the Act.
[30] The commissioner, therefore, cannot justify the presence of a consultant in conciliation proceedings on the basis of agreement by any party, or a waiver of rights by any party.
[31] Authority for the rule that a private person cannot either expressly or tacitly waive their statutory right, nor can an administrative authority justify an illegal or unauthorised act on the grounds that a private person has consented, or waived the right, is found in a number of cases going back to Ritch and Bhyat v Union Government (Minister of Justice) 1912 AD 123. These authorities are referred to in the Law of South Africa vol 1 Chapter on Administrative Law by M Wiechers at 39 footnote 6.
Although legal representation has often been permitted during conciliation proceedings for the purpose of determining jurisdiction, it was held in Sapekoe Tea Estates (Pty) Ltd v Maake & others[11] that this is incorrect:
“Unlike section 138(4)(a), which permits legal representatives to appear in arbitrations, section 135(4) excludes that category of representatives for the purpose of conciliations. Issues relating to jurisdiction may at times be complex, both in respect of fact and of law. Nevertheless, a commissioner does not have the power to vary the provisions of section 135(4) and to permit legal representatives to appear in a conciliation, albeit for the limited purpose of dealing with a jurisdiction dispute. It follows that a commissioner may in that instance be obliged to perform a more inquisitorial function than is typically the case in our largely adversarial system.”
What happens if a party fails to attend or is not represented at conciliation?
In terms of rule 13, if a party fails to attend at conciliation, the commissioner may:
(a) continue with the proceedings;
(b) adjourn the conciliation to a later date within the 30 day period; or
(c) conclude the proceedings by issuing a certificate that the dispute remains unresolved.
(2) In exercising a discretion in terms of subrule (1), a commissioner should take into account, amongst other things—
(a) whether the party has previously failed to attend a conciliation in respect of that dispute;
(b) any reason given for that party’s failure to attend;
(c) whether conciliation can take place effectively in the absence of one or more of the parties;
(d) the likely prejudice to the other party of the commissioner’s ruling; and
(e) any other relevant factors.
Functions and obligations of the commissioner at conciliation
Commissioners have wide powers to resolve disputes through conciliation. A commissioner who has been appointed to attempt to resolve a dispute may—
(a) subpoena for questioning any person who may be able to give information or whose presence at the conciliation or arbitration proceedings may help to resolve the dispute;
(b) subpoena any person who is believed to have possession or control of any book, document or object relevant to the resolution of the dispute, to appear before the commissioner to be questioned or to produce that book, document or object;
(c) call, and if necessary subpoena, any expert to appear before the commissioner to give evidence relevant to the resolution of the dispute;
(d) call any person present at the conciliation or arbitration proceedings or who was or could have been subpoenaed for any purpose set out in this section, to be questioned about any matter relevant to the dispute;
(e) administer an oath or accept an affirmation from any person called to give evidence or be questioned;
(f) at any reasonable time, but only after obtaining the necessary written authorisation—
(i) enter and inspect any premises on or in which any book, document or object, relevant to the resolution of the dispute is to be found or is suspected on reasonable grounds of being found there; and
(ii) examine, demand the production of, and seize any book, document or object that is on or in those premises and that is relevant to the resolution of the dispute; and
(iii) take a statement in respect of any matter relevant to the resolution of the dispute from any person on the premises who is willing to make a statement; and
(g) inspect, and retain for a reasonable period, any of the books, documents or objects that have been produced to, or seized by, the Commission.
The primary role of the commissioner is to help parties resolve their dispute. The commissioner may contact the parties by telephone or other means, prior to the commencement of the conciliation, in order to seek to resolve the dispute[12].
The conciliator must determine a process to attempt to resolve the dispute and to assist the parties to resolve a dispute which may include:
(a) mediating the dispute;
(b) conducting a fact finding exercise; and
(c) making a recommendation to the parties, which may be in the form of an advisory award[13].
Conciliation proceedings may not be disclosed[14]
Conciliation proceedings are private and confidential and are conducted on a without prejudice basis. No person may refer to anything said at conciliation proceedings during any subsequent proceedings, unless the parties agree in writing or as ordered otherwise by a court of law.
(2) No person, including a commissioner, may be called as a witness during any subsequent proceedings in the Commission[15] or in any court to give evidence about what transpired during conciliation unless as ordered by a court of law.
The Labour Court[16] pointed out that the rule that prevents parties from testifying about conciliation proceedings[17] may be unconstitutional.
“[5] The prohibition against reference to statements made at the conciliation during any subsequent proceedings and the prohibition against the commissioner or any other person testifying about the conciliation process conflicts with the right of the applicant to administrative justice and the power of this court to review the performance of any function by the CCMA.
[6] The CCMA Rules, as subordinate legislation, must therefore yield to the LRA and to the Constitution. (Baxter Administrative Law (1984) at 388.)
[7] That shores up difficulties when reviewing conciliation proceedings. In the absence of a record or a response by the commissioner to the review application, or if there are disputes of fact, the court has a dilemma in determining what transpired during the conciliation.”
How to determine whether a commissioner may conciliate a dispute
If it appears during conciliation proceedings that a jurisdictional issue has not been determined, the commissioner must require the referring party to prove that the Commission has the jurisdiction to conciliate the dispute through conciliation, provided that all jurisdictional issues requiring evidence may be deferred to arbitration[18].
The following jurisdictional prerequisites are to be met before the dispute may be conciliated[19]:
(a) A dispute or alleged dispute concerning a matter in respect of which the CCMA has jurisdiction to conciliate, must exist at the time of conciliation;
(b) An employment relationship must have existed between the parties at the time that the dispute arose (except disputes concerning a failure to re-employ in terms of an agreement; discrimination against job seekers; and disputes to which a union may be a party);
(c) The referring party or a duly authorised representative (permitted to represent that party in terms of the rules) must have referred the dispute to the CCMA and the referral document (and application for condonation where applicable) must have been properly signed and served;
(d) The referral must not have been effected prematurely;
(e) The referral must have been effected timeously;
(f) A late referral must have been accompanied by an application for condonation;
(g) Any late referral must have been condoned. The 30 day period referred to in sections 135 (2)[20] and 135 (5)[21] must not have expired or else the parties must have consented to an extension of the period. An extension cannot be agreed after the expiry of the 30-day period.
A commissioner may rule that the CCMA does not have the jurisdiction to conciliate because:
(a) the referral was not effected in accordance with the rules,
(b) the dispute was prematurely referred;
(c) the dispute was not timeously referred and the late referral was not condoned;
(d) a bargaining council has jurisdiction in respect of the dispute;
(e) the dispute ought to have been referred to a private dispute resolution body in terms of an agreement between the parties; and/or that
(f) the nature of the alleged dispute is not such that the LRA requires the CCMA to conciliate the alleged dispute.
A ruling that the CCMA does not have jurisdiction to conciliate, has the effect that arbitration may not be requested. Such a ruling can only be set aside on review by the Labour Court.
It is now accepted that the existence of an employment relationship need not be proved prior to conciliation. The factual allegation about jurisdiction is provisionally accepted before the commencement of a trial provided that it is proved during the trial[22]. There is no reason why this should not apply to conciliation.
In Bombardier Transportation (Pty) Ltd v Mtiya NO & others[23] the Labour Court held:
“…rule 14 does no more than require a conciliating commissioner to give proper consideration to any jurisdictional points raised, including an assessment of whether it is a “ true” jurisdictional point and, if so, whether it is reasonably capable of being disposed of prior to conciliation, or properly left to the arbitration stage. The proper response of a commissioner to jurisdictional challenges can therefore be summarised as follows:
- When a respondent issues a jurisdictional challenge to a properly completed referral form, a conciliating commissioner may elect to determine the jurisdictional question or to defer it. In making that election, the commissioner will generally regard a challenge to the effect that the dismissed person was not an “ employee” as defined or that she was never dismissed as matters that are not truly jurisdictional issues, and defer the challenge to the arbitration phase. In respect of other challenges, the commissioner ought to be guided by the nature of the challenge, the extent to which matters are intimately bound up with the substantive merits of the dispute, the determination of difficult questions of mixed law and fact, and the need for evidence to resolve them.
- If a jurisdictional challenge is heard and upheld prior to the commencement of conciliation proceedings, the commissioner’s ruling puts an end to the dispute. It is not necessary, in these circumstances, for the commissioner to issue a certificate of outcome (since the dispute was never capable of being resolved by the CCMA) and the ruling binds the CCMA and all parties to the dispute. This jurisdictional ruling stands unless and until it is reviewed and set aside by this Court.
- If within the 30 day period assigned for conciliation the conciliating commissioner elects not to determine any jurisdictional challenge, the commissioner must issue a certificate reflecting that the dispute remains unresolved. The commissioner issues the certificate in terms of section 135(5) because conciliation has failed, not because the jurisdictional challenge has been deferred.
- If 30 days have elapsed since the referral was received, the commissioner is bound to issue a certificate stating that the dispute remains unresolved, despite the existence or otherwise of any jurisdictional challenges. The commissioner issues the certificate because she is required to do so by section 135(5).
- Any certificate of outcome issued by a commissioner has no legal significance other than to certify that on the date it was issued, a dispute referred to the CCMA for conciliation remained unresolved. The certificate has no bearing on any jurisdictional issue raised by any party, and is not relevant in any process in which a jurisdictional question is determined.
- In the absence of any relevant and prior jurisdictional ruling made by a conciliating commissioner, any party to a dispute referred to arbitration may raise any challenge to the CCMA’s jurisdiction at that stage, and the challenge must be dealt with by the arbitrating commissioner in terms of section 138(1).”
Methods that commissioners use to break a deadlock[24]
(a) Reality testing during side caucuses and advising a party with poor prospects of the consequences of not accepting an offer that was made.
(b) Suggesting to parties that they should compromise at a point somewhere between their positions as it were when the deadlock was reached.
(c) Suggesting that the parties should disclose their bottom lines.
(d) Making suggestions as to other options available to the parties.
(e) Making a recommendation as to a fair basis on which the dispute may be settled.
(f) Making an advisory award, which is not binding on the parties, but is an indication of the likely outcome of a subsequent arbitration or adjudication, (if applicable), or a likely way in which strike action may be avoided, (if applicable).
The certificate of outcome
A certificate issued in terms of section 135 (5) that the dispute has or has not been resolved, must identify the nature of the dispute and the parties as described in the referral document or as identified by the Commissioner during the conciliation proceedings[25].
Although the LRA does not expressly state what the certificate should contain, the following information must be provided:
(a) The correct case number;
(b) The correct and full names of both parties;
(c) The date when the dispute was first referred to the CCMA;
(d) Full description of the nature of the dispute as described by the referring party in LRA Form 7.11 or as conciliated;
(e) In the event of a late referral whether and when condonation was granted;
(f) The relevant outcome i.e. indicating whether or not the dispute was resolved;
(g) Advice regarding the next available dispute resolution step to take;
(h) A note that the employer did not attend where a certificate is issued in the absence of the employer;
(i) A note that the 30-day period for conciliation expired where a commissioner issues a certificate because the 30-day period for conciliation has expired;
(j) The name and signature of the commissioner.
In Strautmann v Silver Meadows Trading 99 (Pty) Ltd t/a Mugg and Bean Suncoast & others[26] the Labour Court held that:
“the referring party is not bound by a commissioner’s classification of a dispute or any directive as to its destiny. If this were not so and if some legal significance were to be attached to a commissioner’s categorisation of a dispute in a certificate of outcome, then by electing the forum in which the dispute is to be determined, the commissioner denies the referring party the freedom to pursue her rights as she deems fit. Certificates of outcome are issued at the conclusion of the conciliation phase more often perhaps than not in circumstances where no evidence would have been led as to the nature of the dispute. The conciliating commissioner is not always well placed to make judgments, based as they would be only on the say-so of one or both parties during conciliation, as to what the true nature of the dispute might be. Even less, for the reasons stated above, should those judgments be binding on a referring party. It follows that when a commissioner completes Form 7.12 and categorises the dispute referred to the CCMA by ticking one of the boxes provided, the commissioner does not make a jurisdictional ruling. Nor does the ticking of any of the boxes marked “ CCMA arbitration”, “ Labour Court ” “ None ” or “ Strike/Lockout” amount to a ruling on which of those courses of action must be pursued by a referring party. Consistent with the principle established in the Driveline case, it is not for commissioners, by means of certificates of outcome or otherwise, to dictate to litigants either how they should frame the disputes that they might wish to pursue or which forum they are obliged to approach to have those disputes determined.”
[1] Only employees may refer disputes concerning unfair labour practices and unfair dismissals.
[2] Rule 10 CCMA Rules
[3] [2012] 11 BALR 1146 (CCMA)
[4] [2002] 8 BLLR 782 (LC)
[5] 191. Disputes about unfair dismissals and unfair labour practices.—(1) (a) If there is a dispute about the fairness of a dismissal, or a dispute about an unfair labour practice, the dismissed employee or the employee alleging the unfair labour practice may refer the dispute in writing to—
(i) a council, if the parties to the dispute fall within the registered scope of that council; or
(ii) the Commission, if no council has jurisdiction.
(b) A referral in terms of paragraph (a) must be made within—
(i) 30 days of the date of a dismissal or, if it is a later date, within 30 days of the employer making a final decision to dismiss or uphold the dismissal.
[6] 190. Date of dismissal.—(1) The date of dismissal is the earlier of—
(a) the date on which the contract of employment terminated; or
(b) the date on which the employee left the service of the employer.
[7] [1998] 9 BALR 1150 (CCMA)
[8] Rule 11 CCMA Rules
[9] Rule 25 CCMA Rules
[10] [2000] 9 BLLR 1060 (LC)
[11] [2002] 10 BLLR 1004 (LC)
[12] Rule 12 CCMA Rules
[13] Section 135(2) of the LRA
[14] Rule 16 CCMA Rules
[15] Rule 16 CCMA Rules
[16] Kasipersad v Commission for Conciliation, Mediation & Arbitration & others (2003) 24 ILJ 178 (LC)
[17] (3) Conciliation proceedings are private and confidential and are conducted on a without prejudice basis so that no party may make reference to statements made at conciliation proceedings during any subsequent proceedings unless the parties have so agreed in writing.
(4) Neither the Commissioner dealing with the conciliation nor anybody else attending the conciliation hearing may be called as a witness during any subsequent proceedings to give evidence about what transpired during the conciliation process.’
[18] Rule 14 CCMA Rules
[19] CCMA 2014 Practice and Procedure Manual
[20] The appointed commissioner must attempt to resolve the dispute through conciliation within 30 days of the date the Commission received the referral: However the parties may agree to extend the 30-day period.
[21] When conciliation has failed, or at the end of the 30-day period or any further period agreed between the parties—
(a) the commissioner must issue a certificate stating whether or not the dispute has been resolved;
(b) the Commission must serve a copy of that certificate on each party to the dispute or the person who represented a party in the conciliation proceedings; and
(c) the commissioner must file the original of that certificate with the Commission.
[22] See Wardlaw v Supreme Moulding (Pty) Ltd [2007] 6 BLLR 487 (LAC): “The formalistic school of thought entails that the employee would allege what the reason for the dismissal is and the reason he would allege would be a reason that falls under section 191(5)(b) of the Act. That would mean that the dispute should be referred to the Labour Court for adjudication. Once such an allegation has been made, the Labour Court would have jurisdiction to adjudicate the dispute up to the end, even if during the adjudicatory process or trial the court became convinced that the reason for dismissal is not the one alleged by the employee but is a different one and that reason falls under section 191(5)(a) of the Act. Of course, a reason for dismissal alleged by the employee which falls under section 191(5)(a) would in terms of those provisions have required that the dispute be referred to arbitration.
The substantive school of thought entails that the Labour Court should only provisionally accept the employee’s allegation as to the reason for dismissal until it makes a finding as to the true reason for dismissal. If the reason it finds is the same reason as the one that was alleged by the employee, no difficulty arises and the court proceeds to adjudicate the dispute on the merits. If, however, the reason for dismissal that it finds is not the one alleged by the employee but a reason that falls under section 191(5)(a), the court should refuse to adjudicate the dispute and let it be referred to arbitration by the CCMA or a bargaining council with jurisdiction, as the case may be.”
[23] [2010] 8 BLLR 840 (LC)
[24] CCMA 2014 Practice and Procedure Manual
[25] Rule 15 CCMA Rules
[26] [2009] 10 BLLR 1007 (LC)
