LWO Employers organisation

Conciliation, arbitration & potholes

Conciliation, arbitration & potholes featuring image

Aug 29, 2022 | Articles, Business owners tips and advice

When the employment relationship is terminated and the employee believes that he/she has been unfairly dismissed, the employee can approach the Commission for Conciliation, Mediation and Arbitration (CCMA). The case will first be placed for conciliation and if the case cannot be settled, it will be referred for arbitration.

What is conciliation?

This is an informal process where a commissioner is appointed to meet with the parties to a dispute within 30 days after the referral and explore ways to resolve the dispute by mutual agreement. Separate meetings between the commissioner and each party may also be held. If the case is settled, a settlement agreement is signed and the dispute is resolved. If either party breaks the agreement, the aggrieved party may apply to the Labour Court to make the agreement a court order.

Watch out for this pothole:

One of the biggest mistakes employers can make is not attending a conciliation. If the employer does not show up for conciliation, the commissioner will issue a certificate indicating that the dispute is unresolved. The case will then be referred for arbitration. It is important to remember that when a case is placed for Con/Arb and no objection was made against Con/Arb, the commissioner can immediately proceed with arbitration in the absence of the employer and the employer can face an arbitration order.

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What is arbitration?

This is a hearing process where the parties have the opportunity to state their case. During the process, oral evidence is presented as well as any other forms of evidence in support of a party’s case. Thereafter the commissioner will issue an arbitration awards within 14 days. An arbitration award is binding and the equivalent of a court ruling. An order can be that the case is dismissed or that the employer must pay compensation.

Watch out for this pothole:

One of the biggest mistakes is not showing up for the arbitration. If the employer does not attend the arbitration, the process will continue in his absence. The end result is that the CCMA will rule in favour of the employee as there were no facts presented on behalf of the employer. A further mistake is not to prepare thoroughly – each case is only as good as its facts and evidence. Consult properly with your LWO representative, prepare witnesses for questioning and make sure all documentary evidence is fully contained in the bundle.

Possible orders against the employer:

  • CCMA: 3-12 months of the employee’s salary and/or re-instatement
  • Labour Court: 3-24 months of the employee’s salary and/or re-instatement

(The salary is determined in accordance with the salary as on the date of dismissal.)

CCMA processes can be intimidating and it is a good idea to get expert advice. An employer can be represented by any employee/director of the business, or by an office bearer/official of a registered employers’ organisation (such as the LWO).
Employees may be represented by a fellow employee or a trade union. Lawyers do not have right of appearance in the CCMA. The only times when a legal practitioner, such as a lawyer, will be allowed during the proceedings, is only with arbitration when:
  • The commissioner and all the other parties agree to it.
  • The commissioner concludes that it is unreasonable to expect a party to deal with the dispute without legal representation.
  • If a party wishes to make use of a lawyer, the applicant must bring an application for legal representation in terms of rule 25 of the CCMA rules.
The LWO is registered as an employers’ organisation with the Department of Employment and Labour and automatically has the right to represent LWO members in forums such as the CCMA, Bargaining Councils and the Labour Court.

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