Conciliation vs. Arbitration
Understanding these processes at the CCMA
Workplace disputes are a common challenge for both employees and employers, and achieving a fair resolution is a fundamental goal of South African labour law. For employees, knowing how to navigate the processes of the Commission for Conciliation, Mediation, and Arbitration (CCMA) is essential for ensuring that your rights are protected. When a conflict arises, two key processes come into play – conciliation and arbitration. Although both processes aim to settle disputes, they differ in their structure, level of formality, and the outcomes they produce. Understanding these differences, as outlined in the Labour Relations Act, can empower you to approach workplace challenges with clarity and confidence.
Understanding the conciliation process
What is conciliation
Conciliation is the first formal step in resolving workplace disputes. It is a compulsory process under South African labour law for disputes arising under key legislation such as the Labour Relations Act, the Employment Equity Act, the Basic Conditions of Employment Act, the Skills Development Act, and the National Minimum Wage Act.
The process is confidential, held without prejudice, and aimed at helping the employer and employee find common ground without escalating to arbitration or litigation.
What to expect from the conciliation process
During the conciliation hearing, a CCMA commissioner acts as a neutral mediator and facilitator, guiding both parties toward a mutually acceptable resolution of the dispute.
The process typically includes the following steps:
- Referral of the dispute
To initiate conciliation, the employee must refer the dispute by submitting an LRA 7.11 form to the CCMA. This form outlines the nature of the dispute and the desired outcome. Once received, the CCMA schedules a conciliation hearing and notifies both parties.
- Conciliation hearing
On the scheduled date, both parties will attend the conciliation hearing, which is typically held at the CCMA offices. The process involves the following:
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- The commissioner will start by introducing themselves and outlining the purpose of the conciliation. They will set out the procedures, guidelines, and expectations to ensure both parties understand how the hearing will proceed.
- Both parties will be given the opportunity to present their case.
- The commissioner facilitates negotiations to help both parties reach a resolution.
- The commissioner will document the settlement agreement, which will be signed by both parties and legally binding.
- Outcome of conciliation
At the end of the conciliation hearing, there are two possible outcomes:
- Settlement agreement
If a resolution is reached, the commissioner drafts a binding agreement for both parties to sign and follow.
- Referral to arbitration
If the dispute is not resolved, it will be referred to arbitration for a more formal resolution process. Arbitration is more structured, and the decision made by the arbitrator is binding.
How to prepare for CCMA conciliation
Being well-prepared is important to ensure a fair and just outcome.
- Understand the nature of the dispute
Ensure you have a clear understanding of the nature of the dispute. Whether it involves unfair dismissal, wage disputes, or unfair labour practices, be prepared to explain the key facts and events that led to the dispute.
- Gather supporting documents
One of the most important parts of preparing for conciliation is ensuring you have all the necessary documents and evidence to support your claim. This could include:
- Employment contracts – To establish the terms of employment and any agreements made.
- Payslips and financial records – If your case involves wages, unpaid overtime, or other financial matters, these documents will be vital.
- Emails, letters, and correspondence – Any communications that relate to the dispute, such as warnings, disciplinary notices, or requests for resolution.
- Witness statements – If any colleagues or other parties witnessed the events leading to the dispute, their statements could provide valuable support.
- Know your desired outcome
Whether you are looking for reinstatement, compensation, or a change in workplace conditions, it is important to know what outcome you want and to communicate this effectively during conciliation.
- Be open to negotiate
Conciliation is a negotiation process, so be prepared to be flexible. Think about potential compromises or alternative solutions that could resolve the dispute.
Understanding the arbitration process
Once conciliation fails to resolve a dispute, the affected party has 90 days to refer the matter to arbitration, either from the date the CCMA issues a certificate of non-resolution or once the 30-day conciliation period has lapsed, whichever occurs first. If this timeframe is missed, the referral is considered late, and a condonation application must be submitted for the case to proceed. In certain cases, arbitration may take place immediately after conciliation in what is known as a con-arb process.
Arbitration itself is a formal hearing where both parties can present evidence, call and cross-examine witnesses, submit documents, and even request on-site inspections if necessary. The commissioner overseeing the process ensures that proceedings are fair and efficient, following procedures with minimal legal technicality while safeguarding each party’s right to a fair hearing. Ultimately, arbitration serves as a fresh review of the dispute, with the commissioner evaluating the fairness of the employer’s decision based on the evidence and arguments presented.
Who can represent you at arbitration?
A party in dispute may appear in person or be represented in the following ways:
- Employers can be represented by a director or employee of the company, or in the case of a close corporation, by a member of that corporation.
- Registered trade unions and employer organisations may be represented by members, office bearers, or officials as defined by the Labour Relations Act.
- A legal practitioner is allowed to represent a party at arbitration under certain circumstances outlined in the relevant legislation.
Key steps in the arbitration process
- Pre-arbitration conference (if applicable)
For complex matters, parties may voluntarily or by direction of the CCMA hold a pre-arbitration conference. Here, they:
- Exchange relevant documents and agree on their status.
- Clarify what evidence and witnesses will be presented.
- Define the issues in dispute and the relief sought.
- Draft and sign a minute for submission to the commissioner to narrow down issues and streamline the hearing.
- Introduction and preliminary issues
The commissioner opens the session by recording the hearing, confirming party details, and explaining the process and rights involved. Preliminary matters such as jurisdiction and legal representation applications are dealt with at this stage. Before the hearing, both the employee and the employer must gather and organise all evidence to support their case.
The arbitrator will review all submitted documents before the hearing, so it is important that each party is prepared with a clear argument and the necessary evidence.
- Opening statements
Both parties deliver opening statements, outlining the nature of the dispute and what they aim to achieve.
- Presentation of evidence
Each party presents their case, including:
- Documentary evidence such as employment contracts, payslips, emails, and disciplinary records.
- Witness testimony, with cross-examination by the opposing party and potential re-examination thereafter.
- Closing statements
After all evidence has been heard, each party has an opportunity to summarise their argument, highlight key issues, and respond to the other side’s claims.
- Arbitration award
The commissioner deliberates and issues a written arbitration award, which is final and legally binding. This decision must be delivered within 14 days of the arbitration’s conclusion. If a party disputes the outcome, they may take it on review to the Labour Court.
How to Prepare for an Arbitration Hearing at the CCMA
Proper preparation is key to success at the CCMA arbitration. Here are some tips to ensure you are ready:
- Review the case thoroughly
Understand the nature of the dispute. Ensure that you have a clear, concise argument and understand the legal principles that support your case.
- Organise your evidence
Gather all necessary documents and evidence to support your case.
- Know the legal precedents
Understanding the relevant case law and CCMA rulings style that relate to your case will help you present your argument effectively.
- Be ready for cross-examination
During the arbitration, you will likely face cross-examination from the opposing party. Prepare for this by reviewing your evidence and being ready to defend your case in a calm, professional manner.
Conciliation and arbitration are important mechanisms for resolving labour disputes at the CCMA. Being well-prepared, informed, and professional throughout these processes significantly improves your chances of success.
For expert legal assistance and to ensure your rights are protected, contact Hammond Pole Attorneys today.
Blog by: Jacolene Jansen van Vuuren
Jacolene Jansen van Vuuren: Jacolenejvv@hammondpole.co.za