Conciliation is a process to bring the two sides in a dispute together after they have reached a deadlock. In conciliation, an independent and neutral third party is used to mediate between the two sides. Under the Labour Relations Act, the conciliator/ mediator is a commissioner from the CCMA or Bargaining Council.

HOW TO REFER THE DISPUTE TO THE RIGHT BODY

Find out whether there is a Bargaining Council covering the sector that the employee works in. If there is a Bargaining Council, phone that Council and find out the steps you should take to refer the matter for conciliation. If there is no Bargaining Council, the dispute must be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) for conciliation. Do the following:

• Fill in form LRA 7.11. The application can be done online on the CCMA website: https://cmsonline.ccma.org.za/Defaiult.aspx
• Send a copy of the form to the employer, by e-mail, fax, registered mail or personal delivery. If the application was done online it will be sent to the email address of the employer.
• Send a copy to the CCMA, by e-mail, fax, registered mail or personal delivery. Attach proof that you have sent a copy to the employer, for example a fax transmission slip, registered mail slip, or affidavit confirming personal delivery of form LRA 7.11. If the application was done online it will automatically be sent to the CCMA.

If the employee does not want conciliation and arbitration (known as ‘Con-Arb) to take place on the same day with the same commissioner, they must note this in the appropriate space on the dispute Form 7.11. (See LRA Form 7.11)

APPLYING FOR CONDONATION IF THE REFERRAL IS LATE

If more than 30 days have passed since the dismissal (or 90 days if it is an unfair labour practice) took place, the employee will have to apply for condonation, which is like an extension of the deadline and an application for late submission. If a Bargaining Council will deal with the matter, he or she will need to make an application for condonation and submit this application together with the LRA 7.11 form.

If the CCMA deals with the matter, the employee can apply for condonation in form LRA 7.11, or the CCMA will ask them to fill in condonation forms if they didn’t do it on form LRA 7.11. If the application is late, the CCMA will not process the referral if the employee has not made an application for condonation together with the referral of LRA 7.11 form.

Condonation may be granted if the employee can give good reasons for being late with the application. When applying for condonation the employee should focus on the following:

• ‘Degree of lateness’ of the application (how many days/weeks/months late is it) and an explanation of why the application is late
• The prejudice to the parties
• The likelihood of success of the case
• The measure of ‘public interest’ that applies if the case goes ahead (only if this is appropriate)

Application for condonation must be in the form of an affidavit. (See Affidavits)

THE CONCILIATION MEETING

The commission will arrange a venue and time for the conciliation, and will inform both parties. At the conciliation meeting, the commissioner meets with the two parties to the dispute to find ways to settle the dispute to everyone’s satisfaction. The meeting is conducted in an informal way and the commissioner can meet the parties together or separately, as often as is needed. The commissioner has the power to subpoena any person to attend the meeting.

The commissioner must try to resolve the dispute within 30 days of it being referred to the CCMA or Bargaining Council. The employee/s and employer are free to agree to any solution to settle the dispute at a conciliation meeting.

A certificate will be issued by the commissioner at the end of the meeting to say whether the dispute has been settled or not. If 30 days have expired from the date of referral to the CCMA and no resolution has been made, the employee can ask for a Certificate of Non-Resolution from the CCMA and to proceed to fill in an application form for Arbitration.

WHO CAN REPRESENT EMPLOYEES AND EMPLOYERS IN A CONCILIATION MEETING?

Employees can be represented by a co-employee, or a trade union office bearer or official. If the dispute does not concern alleged unfair dismissal for misconduct or incapacity either party can be represented by an attorney. The employer can be represented by an employee of the business (like the Human Resources Manager) or by a representative of an employer’s organisation, but not an attorney.

SUCCESSFUL CONCILIATION

If the conciliation is successful, an agreement is reached which both parties must follow. If they do, the matter is resolved and ends here.

WHAT HAPPENS IF THE CONCILIATION AGREEMENT IS NOT COMPLIED WITH?

If either party breaks the agreement, the other party may apply to the CCMA to have the agreement made into a court order. These are the steps to follow:

• Obtain the application forms from the Registrar of the Court and fill them in. Attach a copy of the agreement and an affidavit to the application. The affidavit must state:
  • When the dispute was referred for conciliation
  • When the conciliation meeting was held
  • When the agreement was made
  • What happened after the agreement was made
  • Whether demands have been made
  • Whether the employee has kept their part of the agreement
• Serve the application on the employer
• File the application with the Registrar of the Court together with proof that you have served notice on the employer

UNSUCCESSFUL CONCILIATION

If the two parties cannot reach an agreement, or the employer refuses to attend the conciliation meeting, the commissioner will issue a certificate stating that the matter has not been resolved. The certificate will be sent to both parties by the commissioner’s office. Either party can then refer the matter for arbitration to the CCMA or adjudication at the Labour Court, depending on the nature of the dispute. Disputes over these matters are referred to the CCMA or Bargaining Council for arbitration:

• Claims for Unfair Discrimination if the employee earns under the threshold prescribed in the BCEA
• Unfair labour practices that do not involve discrimination
• Dismissals for acts of misconduct (the employer says the employee did something wrong)
• Dismissals for incapacity (the employer says the employee can’t do the work properly)
• Severance pay
• Disputes concerning organisational rights for a trade union
• Alleged unfair retrenchment where the retrenchment involved an individual employee.
• Breach of a collective agreement
• Disputes over the granting of organisational rights

Disputes over these matters are referred to the Labour Court for adjudication:

• Disputes that involve discrimination, where the employee earns above the earnings threshold (R21 198 per month)laid down in the BCEA.
• Retrenchments
• Automatically unfair dismissals (See Automatically unfair dismissals)

If the parties believe that it is going to be too expensive to take the matter to the Labour Court, they can agree to have the matter arbitrated by the CCMA or Bargaining Council, even if the matter falls within the jurisdiction of the Labour Court.