Objecting to Con/Arb in the CCMA
The Commission for Conciliation, Mediation and Arbitration (CCMA) was established as an independent, apolitical dispute resolution body in terms of the Labour Relations Act (LRA). When a case is referred to the CCMA, the employer has an option regarding the processes for objecting to Con/Arb. CCMA processes aim to promote fair labour practices and resolve labour disputes in the workplace. An employee can refer a dispute to the CCMA on the basis of dismissal, wages and working conditions, unfair labour practice, workplace changes and discrimination. Most cases referred to the CCMA relate to unfair dismissal.
CCMA processes: the three basics
- Conciliation: This is an informal process where a commissioner is appointed to meet with the parties to a dispute and explore ways to resolve the dispute by mutual agreement. If the case is settled, a settlement agreement is signed and the dispute is resolved.
- 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. The commissioner will issue an arbitration award which is binding and the equivalent of a court ruling.
- Conciliation/Arbitration (Con/Arb): This is an ongoing process where conciliation and arbitration follow directly after each. If conciliation (settlement) is not reached, arbitration will take place on the same day.
Objecting to Con/Arb
- It may not allow for a fair hearing (arbitration). During the Con/Arb process, the same commissioner who presides over the conciliation process also makes the final decision during the arbitration. This means that the commissioner may already have formed an opinion about the dispute, which can affect their impartiality during the arbitration stage. Should a commissioner feel that they have formed an opinion during the conciliation they could decide to request a different commissioner for the arbitration to ensure fairness and impartiality.
- It may not provide for a transparent process. In a traditional arbitration hearing, the parties are allowed to call witnesses, cross-examine them, and present their cases in full. When a conciliation precedes the arbitration, the proceedings are generally informal with the aim to achieve a settlement, and there may not be the same opportunities for witnesses to be called, or for cross-examination to take place. This can make it difficult for parties to challenge or refute evidence presented by the other side, which can impact the integrity of the arbitration decision.
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