The Labour Relations Act 66 of 1995 (LRA) provides for a number of statutory dispute resolution procedures in order to effectively deal with disputes arising out of the employment relationship. Of these, the conciliation hearing and the arbitration hearing are the more commonly used procedures.

A conciliation hearing is a hearing before the CCMA or applicable bargaining council where the commissioner will attempt to assist an employee and an employer to reach a voluntary resolution in a labour dispute. The procedure is informal, uncomplicated and inexpensive. The commissioner will ask both parties to briefly explain their side of the ‘story’ and will then focus on ways in which the parties may find a solution. The parties will negotiate with each other, under the guidance of the commissioner, but they remain free to settle or not.

If conciliation fails to resolve the dispute the employee will seek finality by referring the dispute to an adjudicative process (arbitration). Should the parties agree to settle the dispute, the commissioner will assist the parties to draft a settlement agreement. The commissioner will also issue a certificate indicating that the matter has been settled. The settlement agreement can be enforced as if it is an order of Court.

Stages in a Conciliation Hearing

Pre-conciliations have been introduced by the CCMA in an attempt to resolve disputes without employers, and sometimes the employees too, having to attend a conciliation hearing in person.

Telephonic Conciliation Process

What is a pre-conciliation?

During a normal conciliation hearing:

1. Welcome and formalities

   The commissioner will introduce him/herself and ask the parties to do the same and complete the attendance register. The commissioner will explain the process to be followed and check if an interpreter is needed. The commissioner is likely to explain that his/her role is to assist the parties to reach an agreement to resolve the matter, and remind parties that the proceedings are “without prejudice”. This means that nothing said during the hearing may be used in any other process, such as an arbitration hearing, unless this is ordered by a court. The commissioner may also advise parties that they should not find it strange if the commissioner asks to speak to each party separately. The commissioner is also likely to set rules of conduct expected during the process (for example no interrupting, phones off and no rude behaviour). The commissioner will also deal with any issues raised in terms of representation and jurisdictional issues.

2. Story-telling

   The parties will have the opportunity to tell the commissioner their side of the story, largely without interruption. The commissioner may make brief notes for purposes of reminding him/her of issues which need to be raised as part of the conciliation process, but these notes may not be used by any party once the hearing has concluded. The commissioner may ask questions of clarification during this stage.

3. Problem solving

   There are a number of ways in which the commissioner may try to assist the parties to settle the dispute. For example, the commissioner can talk to the parties in a joint session or may talk to one of the parties alone to investigate the basis on which that party is likely to accept a settlement of the dispute. The commissioner may also explain and clarify certain aspects of the law during this part of the process, so that parties may judge for themselves the strength of their case. This may include some “reality-testing” whereby the commissioner provides some indication of the likely strengths and weaknesses in each party’s case, reminding the parties that s/he has not had the benefit of hearing any evidence relating to the dispute.

   The commissioner will try to generate proposals or an offer to settle from one or both parties. The commissioner may also make an advisory arbitration award or mediator’s proposal to settle the dispute in certain circumstances. This may be a compromise position and either party is free to accept or reject the proposal. The parties are free to decide whether to accept or reject an offer and the commissioner cannot force a party to accept an offer.

4. Settlement and conclusion

   Should the parties agree to settle the dispute, the commissioner will assist the parties by drafting a “settlement agreement”, which will be binding on the parties. The commissioner will explain that the agreement is in full and final settlement of the dispute. This means that the parties are bound by the agreement and they cannot take the matter further or dispute the terms of the agreement. After signature, the commissioner will provide both parties with copies of the agreement, bringing the matter to a close.

   If the matter remains unresolved, the commissioner will explain that the dispute may be referred to arbitration or, in some cases, the Labour Court. The commissioner will also issue a certificate indicating whether or not the matter has been resolved. The applicant will need this certificate to apply for arbitration if the matter remains unresolved unless the matter is a Con/Arb and will proceed to arbitration immediately or on a later date.

The employee must fill in a LRA 7.11 referral form and ensure that:

• The referral form is completed and signed;
• The referral form is served on the employer;
• The referral form is delivered to the CCMA with proof of service on the employer; and
• If the employee does not refer the matter within thirty (30) days of the date of dismissal, s/he must complete and attach an application for condonation form for late referral (see discussion below).

LRA7.11 Form

What does it mean to serve a form on the employer?
The employee must provide a copy of the completed referral form and condonation application form, where applicable, to the employer, either by hand delivery, by fax, e-mail, or registered post and be able to provide proof that this was done.

It is recommended that the employer should advise the CCMA or bargaining council of any changes to its contact details as provided in the referral form as this will assist in ensuring that the correct person at the employer will receive all future communication from the CCMA or bargaining council. It will also prevent the matter being heard in the absence of the employer. It is always useful to provide a cell phone contact number to the CCMA as they often provide details of scheduled cases by ‘sms’.

An employee has thirty (30) days from dismissal to refer an unfair dismissal to the CCMA or bargaining council. The thirty (30) days runs from the date of dismissal or the employer’s final decision to dismiss or uphold the dismissal. All days must be counted including Saturdays, Sundays and public holidays and only if the last day falls on a Sunday or public holiday is it excluded.

For example, employee X is dismissed on Friday, 1 September. The 30-day referral period starts on Saturday, 2 September as you exclude the first day. As the 30th day falls on Sunday, 01 October, that day is excluded because it is a Sunday and the 30th day will then fall on Monday, 02 October.

CCMA Rules 2024

What is the date of dismissal?

Dismissal without notice: the date of dismissal is the earlier of the date on which the contract of employment terminated or the date on which the employee left the services of the employer.

Dismissal with notice: If the employee was required to work out his/her notice, the date of dismissal would be the earlier of the date on which the notice period expired or the date on which the employee is paid all outstanding salary.

Fixed-term contracts: the date of dismissal is the date on which the employer has offered to renew the contract on less favourable terms, or where the contract is not renewed – the date on which the employer notified the employee that the contract will not be renewed.

Failure or refusal to reinstate or re-employ: the date of dismissal is the date on which the employer refused to reinstate or re-employ the employee.

Failure to allow an employee to resume work: the date of dismissal is the date on which the employer refused to allow the employee to resume work.

When the employee has not managed to refer the dispute to the CCMA or bargaining council within thirty (30) days, the employee must apply for condonation for the late referral, in other words, to excuse or condone the late referral.

A condonation application must be completed by the employee or his/her representative and a copy thereof must be served on the employer and returned to the CCMA or bargaining council with proof of service on the employer attached to the referral form. The employer has the right to respond to the condonation application by affidavit within five days of receiving it.

The condonation application should deal with the points listed below, with the employer being entitled to respond accordingly:

• degree of lateness;
• reason why the referral is late;
• prospects of success;
• prejudice the employer will suffer if the matter would proceed;
• any other relevant factors.

The employee may then reply to the response received from the employer. The CCMA or bargaining council may decide whether or not to decide on the condonation application based on the written submissions only, or may decide to rather invite both parties to a hearing where they may make verbal submissions on these factors. The commissioner will then issue a condonation ruling.

The CCMA must notify the parties of the hearing fourteen (14) days before the scheduled date unless the parties agree to an earlier date. Notification may be made in various ways, including by e-mail, fax, registered mail. Where cell phone numbers are provided, it is common practice for a sms to be sent to the parties to notify them of the hearing.

If the matter is scheduled for a con-arb hearing, the employer should make sure to have all documents and evidence on hand and ensure that witnesses are on stand-by, in reasonably close proximity to the CCMA or bargaining council, in the event that the matter proceeds straight into arbitration.

In the event that the parties reach an agreement to settle the dispute at conciliation – or during arbitration proceedings – the terms of the settlement will be included in a signed settlement agreement. That signals the end of the dispute that has been referred to the CCMA or bargaining council.

Should the employer fail to honour the agreement, the employee may apply to the CCMA to have the settlement agreement made into an arbitration award. In the event that the settlement agreement states that the employer will pay the employee compensation, such agreement (now an arbitration award) may be enforced through the office of Sheriff of the Court. If it was agreed that the employee would be reinstated or re-employed, enforcement of the agreement (award) takes place through the Labour Court by way of contempt of court proceedings.

What happens if the matter is unresolved at conciliation and then is referred to arbitration?
The commissioner who conciliates the dispute will issue a certificate indicating that the dispute remains unresolved. Where the employee had not applied for a con-arb process, the employee must request arbitration within ninety (90) days of the certificate being issued, stating that the dispute remains unresolved after conciliation. This is done by filling out a form LRA 7.13. The form must be served on the employer and delivered to the CCMA with proof of service.

Arbitration is a process where a commissioner hears evidence and argument from both parties and makes a final and binding decision. The parties may bring relevant forms of evidence and witnesses to testify. Each party may cross-examine the other party’s witnesses.

LRA7.13 Form

The CCMA must notify the parties of the date of the arbitration hearing at least twenty-one (21) days before the hearing.

At conciliation the employer may be represented by a director or an employee, or if it is a close corporation, a member or employee of the close corporation. If the employer belongs to an employers’ organisation it may be represented by any member, office bearer or official, as defined in the LRA, of the organisation.

If the employer is a registered employers’ organisation, any director or employee of an employer that is a member of that employers’ organisation or any official or office bearer as defined in the LRA and authorised to represent the employer.

Legal practitioners, candidate attorneys and labour consultants are not allowed in conciliation. A legal practitioner or candidate attorney may, however, represent an employer or employee during condonation proceedings.

At arbitration, legal representation is allowed except if the dispute being arbitrated concerns one of the following:

• a dispute relating to a compliance order issued by the Department of Labour (section 69(5) of the BCEA);
• an application to make a compliance order an arbitration award (section 73 of the BCEA);
• a dispute relating to outstanding payments arising from the BCEA, the NMWA, a contract of employment, a collective agreement or a sectoral determination (section 73A of the BCEA); and
• a dispute about the fairness of a dismissal where a party alleges that the reason for the dismissal relates to the employee’s conduct or capacity.

In such cases, a party may apply to be represented by a legal practitioner or candidate attorney on the basis that the case –
• is legally or factually complicated;
• is in the public interest; and/or
• if the comparative ability of the parties to deal with the arbitration is skewed.

The parties and the commissioner may also consent to legal representation at arbitration.

The con-arb process is governed by the provisions of section 191(5A) of the Labour Relations Act 66 of 1995 (LRA). Con-arb simply means that the arbitration hearing is scheduled to take place straight after the conciliation hearing, on the same day, in the event that the parties are not able to settle the conciliation hearing.

The purpose of the process is to save time and costs for the parties and to reduce the demands on the limited and over-stretched resources of the CCMA or a bargaining council. It also assists parties to avoid problems associated with the fading memories of witnesses, losing contact with witnesses or other interested parties and/or documentary evidence going missing.

The nature and procedural steps of conciliation and arbitration are the same as those used in a con-arb hearing. Therefore, parties must come to a con-arb hearing ready and prepared for arbitration in the event that they do not manage to resolve their dispute at conciliation. This includes ensuring that witnesses, relevant documents and any other required evidence that they may want to present to an arbitrator should be available for the arbitration hearing.

The con-arb process is only aimed at unfair dismissal and unfair labour practice (ULP) disputes. However, not all dismissal and ULP disputes are necessarily subject to con-arb.

The con-arb process is only compulsory for the following disputes:

• Dismissal related to probation.
• An unfair labour practice related to probation.

The con-arb process is excluded in dismissal and ULP disputes which are subject to Labour Court adjudication rather than arbitration. Disputes where con-arb is not applicable are:

• Dismissal in breach of freedom of association principles.
• All automatically unfair dismissals (LRA s. 187 reasons).
• Dismissals based on operational requirements, where employees do not have the option of arbitration.
• An unfair labour practice resulting from an employee having made a protected disclosure (Protected Disclosures Act 26/2000).

What is an automatically unfair dismissal?
How to end employment fairly by retrenchment?

In all other dismissal and unfair labour practices disputes mentioned in section 191(5)(a), the parties have a choice either to have the dispute resolved by con-arb or by conciliation and arbitration as two distinct processes. If either party objects to con-arb, the processes will be separated.

These disputes include:

• Dismissal related to the employee’s conduct or capacity.
• Constructive dismissal.
• Operational requirements (retrenchment) of only one employee (or more if the employer has fewer than 10 employees).
• Where the employee does not know the reason for dismissal.
• An unfair labour practice as described in LRA section 186(2)(a) to (c).

The LRA form 7.11 refers a dispute to conciliation and, if necessary, to arbitration at the same time. If an employee wants to avoid the con-arb, the employee must indicate clearly on the referral form that s/he does not want the dispute to be processed as a con-arb. This will mean that the dispute will be conciliated on the date scheduled, but if unresolved, the employee will have ninety (90) days in which to complete and submit an LRA form 7.13 referral of the dispute to arbitration.

The employer also has a choice to use con-arb or not (except in disputes related to probation). Once the 7.11 form has been served on the employer party to the dispute, the employer may object to con-arb as the dispute resolution process. This must be done at least seven (7) days before the scheduled date of the hearing. If the employer objects to con-arb in disputes other than those where objection is not an option, the CCMA / bargaining council will schedule a conciliation hearing only.

Con-arb has significant time and cost-saving advantages for the employer, the employee, and the CCMA or bargaining council. More importantly, it brings finality and legal certainty to the dispute much more quickly than two separated processes. This is an important consideration.

It is advisable that an employer should not object to con-arb if it is fully aware of the facts of the matter and the employee’s allegations and is able to prepare in advance and bring witnesses and evidence to the con-arb.

It may be appropriate to object to con-arb if the employer is uncertain what allegations the employee will raise, and is therefore not able to prepare fully for arbitration or where the cost of bringing witnesses is very high and the possibility for settlement is good.

In these circumstances it would be better for the employer to attend the conciliation in order to attempt to reach a settlement, and if not, to determine what issues are being raised by the employee, and (if the dispute is not settled) to prepare for arbitration accordingly.

Objection to con-arb must take place at least seven (7) days before the scheduled con-arb hearing, and must be served on the other party. Proof of service of the objection must be filed with the CCMA or bargaining council. If a party does not object within the required timeframe, an application for condonation must be submitted as well.

What happens if the employee fails to attend the con-arb?

The commissioner may proceed with the matter and issue a certificate of non-resolution. However, if the employer has not objected to con-arb, the commissioner may proceed to the arbitration stage of the process and dismiss the matter.

What happens if the employer fails to attend?

A conciliation hearing cannot be postponed and if the employer cannot attend, it should object to con-arb. If the employer fails to attend the con-arb, and has not submitted an objection to the process, the commissioner will proceed with the conciliation and issue a certificate. The commissioner will then immediately start the arbitration proceedings and make a final and binding decision by way of a default arbitration award. This exposes the employer to considerable risk as the finding will be made on the version of the employee only.

If the employer discovers that a default arbitration award has been issued, and can show that it was not aware of the scheduled date of the hearing either because the notice of the hearing was not served on the employer or for some other reason, the employer may, within fourteen (14) days of becoming aware of the award, apply to have the award rescinded.

An employee who fails to attend the con-arb hearing may find him/herself in a similar situation as the commissioner may dismiss the matter on the basis of non-attendance at the arbitration hearing. S/he may also apply to have the dismissal ruling rescinded within fourteen (14) days of becoming aware of the ruling.

Conciliation and arbitration have traditionally been two disconnected events, often separated by a few weeks or months.

Con-arbs were introduced by the 2002 amendments to the LRA as a ‘one-stop’, expedited dispute resolution process. As their name implies, this process involves a combination of conciliation and arbitration into one process. Unless the right to object to a con-arb is utilised, if the conciliation is not resolved, the commissioner will go straight into the arbitration of the matter.

The intention behind the con-arb process is to save the employee and the employer, as well as the CCMA time and resources by holding the two processes at one sitting.

Should a dispute not be settled at conciliation, an employee may refer the dispute to arbitration. Unlike a conciliation hearing where the parties decide on and influence the outcome of the process, with an arbitration hearing, it is the commissioner who determines the outcome in the form of a final and binding decision given in writing.

The commissioner will base his/her decision on the evidence produced and arguments raised by the parties to the hearing. The parties can bring witnesses to the hearing and can cross-examine the other parties’ witnesses. The parties can submit documentation or any other evidence that will assist them to prove their case. After hearing all the evidence and legal argument, the commissioner will issue an arbitration award.

Stages in an arbitration hearing

(Note: Conciliation and arbitration have some procedural similarities but differ in that the commissioner’s decision in arbitration is final and binding.)

1. Introduction

   During the introduction, the commissioner will start recording the process, stating the case details and asking the parties to state their names and positions. The commissioner will deal with what language will be used and will explain the procedure that will be followed. The commissioner will describe the process of arbitration and explain the parties’ rights. The commissioner may ask the parties whether they would like to go back into conciliation mode to try to resolve the matter before proceeding with arbitration.

2. Preliminary issues

   Before proceeding with the arbitration, the commissioner must ensure that the CCMA has the power or authority to hear the matter (jurisdiction). Furthermore, if a party wants to have legal representation, the application must be made at this stage (if this has not already occurred in writing). Any other preliminary issues should be raised at this stage.

3. Outline and narrowing of issues in dispute

   The commissioner may ask the parties to explain what the dispute is about. This is usually done in the form of opening statements where both parties explain why they see the dismissal as being fair or unfair. The commissioner may also ask specific questions to obtain background information such as the date of employment, the date of dismissal and the reason for dismissal. The commissioner will then try to determine which issues are not in dispute (common cause) and which issues are in dispute. Evidence is only needed on issues that are in dispute.

4. Hearing of evidence

   The parties then present their case. They may call witnesses and submit relevant documents. After each witness has testified, the other party can cross-examine that witness. Cross-examination may be used to get additional information from the witness, to dispute anything that the other side does not agree with and to put a version to the witness so that s/he has an opportunity to respond to it. After that, the party that called the witness may re-examine the witness (based only on the questions that witness faced during cross-examination).

5. Concluding arguments

   During this last phase of the hearing, the parties are invited to argue their case. They may summarise the evidence that was presented on which they would like to rely; indicate what evidence they feel carries more weight than others and argue why a certain version should be accepted or not; refer to case law; and explain what outcome they seek.

6. Arbitration award

   The arbitration award, which is issued within fourteen (14) days after the hearing, is the final binding outcome of the matter.

The CCMA must notify the parties of the date of the arbitration hearing at least twenty-one (21) days before the hearing.

The employer and employee may agree in writing to postpone arbitration and submit such an agreement to the CCMA or bargaining council not less than seven (7) days before the hearing.

If there is no agreement, either party may apply on affidavit for postponement, but a mere application does not guarantee that postponement will be granted.

Remember that in an arbitration, the test is whether the employer has been able to prove on a balance of probabilities that the dismissal was procedurally and substantively fair. The criminal proceedings test of ‘beyond a reasonable doubt’ does not apply to CCMA and bargaining council proceedings.

If the employer fails to prove that the dismissal was procedurally (a fair procedure was followed) and substantively fair (for a fair reason), the commissioner may order:

• Reinstatement: the employee will go back to work on the same terms and conditions that applied prior to dismissal. The reinstatement may be retrospective, and back-pay may be awarded.
• Re-employment: the employee will be employed on new terms and conditions.
• Compensation: the employee must be paid an amount which is just and equitable to compensate him/her for the unfairness.

If the dismissal is found to be only procedurally unfair, the commissioner may decide whether or not to order compensation. An order of reinstatement or re-employment only applies to a dismissal that is substantively unfair.

The parties will receive a decision within fourteen (14) days of the hearing unless this period is extended by agreement of the CCMA Director.