I received a follow-up question from a reader who was (according to him) recently unfairly dismissed.
He appealed the decision after an internal hearing, but the sanction was upheld at appeal. He then referred the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA), which is the correct procedure.
The CCMA has just furnished him with a date for the conciliation and he would like to know what to expect on the day.
First of all, our reader must realise that the CCMA is not a court. It is merely a forum that deals with various labour disputes.
The conciliation process is much more informal and – although he needs to be well prepared – he need not be nervous or anxious, because this process is one without prejudice and as such the procedure is not recorded electronically.
The commissioner convening the conciliation does not decide who is in the right and who is in the wrong at the meeting, as he does not have the authority to do so.
As a result, whatever the applicant (employee) alleges at the conciliation may not be used against him at arbitration proceedings. The same goes for any allegations made by the respondent (employer).
The CCMA will let both parties know when their conciliation will take place. A date is usually set down within three to four weeks after the matter has been referred to the CCMA.
If the employer does not show up at the CCMA on the date of the conciliation, the commissioner must issue a certificate of non-resolution, as the matter remains unresolved at conciliation. The applicant (employee) can now refer the dispute to arbitration.
If both the employer and employee are present, but a resolution cannot be found, the commissioner must issue a certificate of non-resolution and the employer can refer the dispute to arbitration. However, if both parties are present, the matter could be settled at conciliation.
The procedure of the conciliation is as follows:
The commissioner will introduce himself and inform the parties of his role in the process. He will then ask the parties to introduce themselves.
The applicant (employee) – in this case our reader – will put his side of the story first, since he referred the matter to the CCMA. This will be his opportunity to explain why he believes he was unfairly dismissed.
The commissioner may intervene to ask the applicant questions or may wait until he has finished and then ask questions. He will ask these questions to familiarise himself with all the facts of the issue at hand.
Questions may include things like how long the applicant was employed at the company and what outcome the applicant desires from the conciliation process.
After this, the respondent (employer) will state his side of the story and again the commissioner may ask questions. He may even let the parties pose questions to one another to establish facts.
At some point during the proceedings, the commissioner may ask the parties if they would be willing to settle the dispute. If both parties indicate that there may in fact be a possibility of settlement, the commissioner will speak to each party separately (this part of the proceedings is referred to as a caucus).
If an agreement cannot be reached, the commissioner has to issue a certificate of outcome stating that the matter remains unresolved at the date of conciliation.
The applicant can then exercise his right by filling out a request for arbitration form (LRA 7.13). The certificate of outcome must be attached to the aforementioned form.
Wikus van Rensburg is a well-respected labour law attorney in Port Elizabeth in Nelson Mandela Bay.
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