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.
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CCMA processes: the three basics
Once the applicant has referred a dispute to the CCMA, it will be set down for conciliation and a commissioner will be appointed to adjudicate the dispute. If conciliation fails, the matter will be set down for arbitration.
- 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.
An employer should never ignore any documentation received directly from the CCMA, or a CCMA referral form received from a dismissed employee. Within a few weeks of receiving such a referral form, the CCMA will provide the employer with a set down date. If the employer does not receive a set down date, it is advisable to contact the CCMA in order to follow up on the set down date. If an employer fails to attend the arbitration proceedings without a valid reason, the proceedings will continue in their absence and a default award will be issued against their name.
Objecting to Con/Arb
While Con/Arb can be an efficient way of resolving disputes quickly and cost-effectively, the process can be controversial and some parties may have valid reasons to object to this process, such as:
- 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.
Parties to a dispute with valid reasons for objecting to Con/Arb process can do so by serving and filing an objection with the CCMA seven days before the date of the hearing and request that the matter be referred to arbitration on a later date. Ultimately, the goal of any dispute resolution process should be to ensure fairness, transparency, and impartiality.
A recent Labour Court judgement (Valinor trading 133 cc t/a Kings Castle v CCMA & Others) held that if a party objects to arbitration immediately after conciliation, the commissioner is not empowered to arbitrate, even though the objection was not done in terms of the Rules of the CCMA. The CCMA however appealed the judgement and the operation of the matter has been suspended pending the outcome of the appeal. The LWO will keep members updated regarding the outcome of the appeal and the impact thereof on CCMA proceedings.
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 an employers’ organisation that is registered with the Department of Employment and Labour.
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