In South Africa almost all disputes relating to the employment relationship are referred to the CCMA for resolution. The large volume of cases unfortunately means longer waiting periods in having your dispute resolved. S191 (5A) of the Labour Relations Act provides a solution to this; the Con-Arb process. The Con-Arb process is effectively a “short-cut process” for unfair labour practices and unfair dismissals which allows Conciliation and Arbitration to take place as somewhat of a continuous process on the same day; the latter proceeding the former.
The moment a matter is referred to the CCMA, Conciliation is a given. The parties are assisted by a Commissioner to attempt to reach a settlement on which the parties both agree. However, if the Conciliation process fails and no settlement is reached, the Employee (Applicant) can refer the matter to Arbitration which is a vastly different procedure. Should this be the case, then the parties will be issued with a Certificate of Non-resolution and the Employee then has 90 calendar days within which to refer the matter to Arbitration. Should the Application only be submitted to the CCMA after this period, the Employee will have to apply for Condonation. This will be dealt with in a future article.
Arbitration is somewhat like a trial. The matter is heard de novo (‘starting from the beginning’). The Arbitrator listens to all the facts and evidence and makes a decision based on such. Unfortunately the wait between Conciliation and Arbitration may be several weeks or even months depending on when the matter is referred. For the disgruntled and often unemployed Employee, this can be incredibly frustrating. Con-Arb for some could then provide the best solution to this problem, as the Arbitration takes place directly after the unsuccessful Conciliation process.
It may seem that opting for the Con-Arb process is the natural choice, after all this “short-cut process” brings to a close disputes which in all likelihood would have taken months to complete. By extension, this option may even put pressure on parties to settle the matter during Conciliation. It should, nonetheless, not be undertaken lightly.
The very nature of the Con-Arb process means that there is no time after an unsuccessful Conciliation meeting to prepare evidence, witnesses and arguments and, since presentation of your case is vital to the outcome of the matter, it is of the utmost importance that you prepare thoroughly for Arbitration, regardless of the fact that it may not take place if settlement is reached at Conciliation. It is however good to note that from a cost perspective, this process could become unnecessarily expensive because preparation with an attorney would have to be done for the Conciliation and Arbitration, including the preparation of witnesses, prior to the Con-Arb date. This could be quite time-consuming for an Employee. The alternative option would be for the Employee to sign the referral form where it specifically refers to the objection of the two processes running consecutively on the same day.
Should the Employee not have signed as explained above the Employer, if it so wishes, can execute its right to lodge an objection to Con-Arb at least 7 days prior to the scheduled Con-Arb by serving such objection on the Employee and the CCMA. The only time when an objection to the Con-Arb process cannot be lodged is when the dispute concerns a dismissal or unfair labour practice relating to probation.
As long as Employers ensure that they identify the Con-Arb process on the Referral Form and Notice of Set Down and Employees are fully aware of what this process entails from the beginning and that neither, due to a unwavering belief of the strength of their case, fails to prepare adequately, it seems that the Con-Arb process introduced by the Labour Relations Act has indeed provided an expeditious alternative to the traditional process, without being inequitable.