AFTER CONCILIATION: WHAT HAPPENS NEXT

Once you have attended conciliation, and assuming that you were either unwilling or unable to settle the dispute, the Applicant has the right to refer the matter to the next step – arbitration.

1.        ARBITRATION REFERRAL AND SET DOWN

1.1.   The Applicant has to complete an LRA Form 7.13 (referral for arbitration) and serve same on both the Respondent and the CCMA, along with a copy of the Certificate of Non-Resolution that was issued at the end of the Conciliation.

1.2.   The Applicant has 90 calendar days from the date of issue of the Certificate of Non-Resolution, to refer their dispute to arbitration.

1.3.   The CCMA will allocate a date and time for the arbitration to proceed. This can take up to three (3) months, depending on how busy the CCMA is and which province the dispute is being heard in (i.e. Johannesburg is the busiest office and therefore has the longest lead times from referral to actual arbitration date).

1.4.   In terms of the Rules of the CCMA, they have to give parties a minimum of 21 calendar days’ notice of an arbitration. You will receive a notice of set down, similar to the document you received to inform you of the conciliation date.

1.5.   The same Commissioner who presided over the conciliation does not conduct the arbitration – a different Commissioner is allocated.

1.6.   If the matter is legally complex, there is a process in terms of which either party may apply for a Senior Commissioner to be appointed (usually an Advocate or long-serving CCMA Commissioner).

2.        PRE-ARBITRATION CONFERENCE

2.1.   The Rules of the CCMA make provision for the parties to conduct a pre-arbitration conference – similar to a pre-trial conference that is compulsory in Court proceedings.

2.2.   This is not a compulsory process, but we generally recommend that our clients do complete this step. Not only does it provide an additional opportunity for settlement (if this is something you would like to pursue), but it also provides insight into the opposing party’s bundle of documentary evidence, their list of witnesses, the issues in dispute and the exact relief being claimed.

2.3.   The following points are to be discussed and agreed to during a pre-arbitration conference:

2.3.1.           Any means short of arbitration through which the dispute may be settled;

2.3.2.           Facts that are common cause (facts that both parties agree on, thus reducing the need to prove these facts by means of documentary or oral evidence);

2.3.3.           Facts that are in dispute (facts that the parties cannot agree on and which would need to be proven by means of documents or witness testimony);

2.3.4.           Issues to be decided by the Commissioner (this basically provides the terms of reference for the CCMA Commissioner and gives them an indication of exactly what the dispute is about and what they have to make a determination on);

2.3.5.           Relief being claimed and how same was calculated (what relief the Applicant wants – such as financial compensation – and how they calculated this amount);

2.3.6.           The sharing and exchange of relevant documents and the preparation of a bundle of documents in chronological order, with each page numbered;

2.3.7.           The manner in which documentary evidence is to be dealt with (this includes seeking agreement on whether documents are what they purport to be, or whether the status and veracity of documents are in question);

2.3.8.           Whether evidence on affidavit will be admitted and whether the other party will have the right to cross-examine the person who deposed to the affidavit;

2.3.9.           Which party must begin (in unfair dismissal disputes, it’s usually the employer who must begin);

2.3.10.        Whether or not any on-the-spot inspections are required (this may mean that the Commissioner actually has to visit specific premises to observe specific facts and circumstances);

2.3.11.        Securing the presence at the CCMA or any witnesses (which witnesses the parties will be calling and agreement to ensure that these parties are present and available on the day of the arbitration);

2.3.12.        The resolution of any preliminary points that are intended to be taken (often parties raise preliminary points relating to jurisdiction and this is an opportunity to resolve those points and reduce the time being spent at arbitration);

2.3.13.        Whether or not the parties will be exchanging witness statements;

2.3.14.        Whether or not either party will be relying on expert evidence (and which experts are to be called to provide which expert opinion testimony);

2.3.15.        Any means by which the proceedings may be shortened;

2.3.16.        An estimate of the time required for the hearing;

2.3.17.        The right of either or both parties to legal representation; and

2.3.18.        The need for an interpreter and, if so, for which language.

2.4.   The parties are required to keep and sign a minute of this conference and submit same to the CCMA Commissioner prior to the arbitration proceedings commencing.

3.        LEGAL REPRESENTATION

3.1.   The purpose of the CCMA and Bargaining Councils, is to provide a forum for dispute resolution where parties are afforded an opportunity to be heard. It is not a Court of Law and the argument has always been that CCMA proceedings should not be overly ‘legalised’ or ‘proceduralised’.

3.2.   Legal representation (by an admitted Attorney or Advocate) is not a right and not ordinarily permitted unless:

-          Both parties have agreed to same; or

-          A determination is made by the Commissioner that legal representation would benefit one or both parties.

3.3.   Commissioners base their decisions to allow legal representation on arguments submitted by both parties relating to:

-          The complexity of the dispute and specifically the questions of law raised by the dispute (if it’s legally technical or a potentially landmark case, legal representation would be preferable. If however, the dispute is simple and does not raise any new questions of law, there’s no reason why lawyers would be the only people able to competently argue the merits of the matter); and

-          The comparative ability of the parties (if one side has a lawyer and the other does not, the playing fields are clearly not level and either both parties will be denied the right to representation or both parties will be given an opportunity to secure and appoint a competent representative).

3.4.   If you know that the Applicant does not have an attorney, it is advisable that you prepare for your case in anticipation of the likelihood that your corporate attorney will not be permitted to represent you. Alternatively, draft formal arguments in support of why legal representation should be allowed and furnish same on the CCMA and the other party at least 14 calendar days prior to the arbitration date (there are rules on how this should be done and the form and content that is required – get help from a competent labour law specialist).

4.        REPRESENTATION BY TRADE UNIONS AND EMPLOYERS ORGANISATIONS

4.1.   Besides representing themselves, parties may be assisted by a registered trade union or employer’s organisation.

4.2.  

REGISTERED USER COMMENTS