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Chapter 6 - Labour Law

Solving disputes under the LRA

Chart: Steps to resolve a labour dispute under the LRA

[see page 207]

Conciliation by the CCMA or Bargaining Council

What is conciliation?

Conciliation is a process to bring the two sides in a dispute together after they have reached a deadlock. 'Deadlock' means that after trying to negotiate, they still can't solve the problem. In conciliation, an independent and neutral third party is used to mediate between the two sides. Under the Labour Relations Act, the mediator is a commissioner from the CCMA or Bargaining Council.

How to refer the dispute to the right body

Find out whether there is a Bargaining Council covering the sector that the employee works in. If there is a Bargaining Council, phone that Council and find out the steps you should take to refer the matter for conciliation.

If there is no Bargaining Council, the dispute must be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) for conciliation. Do the following:

• Fill in form LRA 7.11.
  
• Send a copy of the form to the employer, by fax, registered mail or personal delivery.
  
• Send a copy to the CCMA, by fax, registered mail or personal delivery. Attach proof that you have sent a copy to the employer, for example a fax transmission slip, registered mail slip, or affidavit confirming personal delivery.

If the employee does not want conciliation and arbitration to take place on the same day with the same commissioner, he or she must note this in the appropriate space on the dispute Form 7.11.

See LRA Form 7.11.

Apply for condonation if the referral is late

If more than 30 days have passed since the dismissal (or 90 days if it is an unfair labour practice) took place, you will have to apply for condonation, which is like an extension of the deadline. If a Bargaining Council will deal with the matter, ask the Council how to apply for condonation. If the CCMA will deal with the matter, you can apply for condonation in form LRA 7.11, or the CCMA will ask you to fill in condonation forms if you didn't do it on form LRA 7.11.

Condonation may be granted if you are able to give good reasons for being late with the application. When you apply for condonation you should focus on the following:

• ‘degree of lateness’ of your application (how many days/weeks/months late is it)
  
• the prejudice to the parties
  
• the likelihood of success of your case
  
• the measure of ‘public interest’ that applies if your case goes ahead (only if this is appropriate)

Application for condonation must be in the form of an affidavit.

See Affidavits.

The conciliation meeting

The commissioner will arrange a venue and time for the conciliation, and will inform both parties. At the conciliation meeting, the commissioner meets with the two parties to the dispute to find ways to settle the dispute to everyone's satisfaction. The meeting is conducted in an informal way and the commissioner can meet the parties together or separately, as often as is needed. The commissioner has the power to subpoena any person to attend the meeting.

The commissioner must try to resolve the dispute within 30 days of it being referred to the CCMA or Bargaining Council. The employee/s and employer are free to agree to any solution to settle the dispute at a conciliation meeting.

A certificate will be issued by the commissioner at the end of the meeting to say whether the dispute has been settled or not.

Who can represent employees and employers in a conciliation meeting?

Employees can be represented by a co-employee, or a trade union office bearer or official or a lawyer. Paralegals may not represent employees in conciliation proceedings. The paralegal can ask to be present and can advise the employee during the meeting. If the employer objects to the paralegal being there, the employee can ask for a break to caucus and consult with the paralegal before making any final decisions.

The employer can be represented by an employee of the business (like the Human Resources Manager) or by a representative of an employers' organisation, but not an attorney if the matter concerns misconduct or incapacity dismissal.

Successful conciliation

If the conciliation is successful, an agreement is reached which both parties must follow. If they do, the matter is resolved and ends here.

What happens if the conciliation agreement is not complied with?

If either party breaks the agreement, the other party may apply to the Labour Court to have the agreement made into a court order. These are the steps to follow:

- Obtain the application forms from the Registrar of the Court and fill them in.
- Attach a copy of the agreement and an affidavit to the application. The affidavit must state:

• when the dispute was referred for conciliation
• when the conciliation meeting was held
• when the agreement was made
• what happened after the agreement was made
• whether demands have been made
• whether the worker has kept his or her part of the agreement

- Serve the application on the employer.
- File the application, and proof that you have served notice on the employer, with the Registrar of the Court.

Unsuccessful conciliation

If the two parties cannot reach an agreement, or the employer refuses to attend the conciliation meeting, the commissioner will issue a certificate stating that the matter has not been resolved. The certificate will be sent to both parties by the commissioner's office.

Either party can then refer the matter for arbitration at the CCMA or adjudication at the Labour Court, depending on the nature of the dispute.

Disputes over these matters are referred to the CCMA or Bargaining Council for arbitration:

• unfair labour practices that do not involve discrimination
  
• dismissals for acts of misconduct (the employer says the employee did something wrong)
  
• dismissals for incapacity (the employer says the employee can't do the work properly)
  
• severance pay
  
• disputes concerning organisational rights for a trade union
  
• alleged unfair retrenchment where the retrenchment involved an individual employee.
  
• breach of a collective agreement
  

Disputes over these matters are referred to the Labour Court for adjudication:

• Disputes that involve discrimination
• retrenchments
• automatically unfair dismissals

If the parties believe that it is going to be too expensive to take the matter to the Labour Court, they can agree to have the matter arbitrated by the CCMA or Bargaining Council, even if the matter falls within the jurisdiction of the Labour Court.

Arbitration by the CCMA or Bargaining Council

What is arbitration?

Arbitration means the two sides (or parties to the dispute) agree to use a third party to settle a dispute. A third party is someone who is not from the union or employer's side. The arbitrator acts as judge to decide the dispute. Arbitration is usually used to settle disputes of right (in other words disputes about rights that already exist).

Under the LRA, the arbitrator is a commissioner from the CCMA or bargaining Council. After hearing what both parties have to say, the commissioner can make a ruling that is legally binding and must be accepted by both parties.

How to refer a case for arbitration

If there is a Bargaining Council which regulates the sector that the parties work in, then the matter must be resolved according to the rules of that Council. Contact the relevant Council to find out what to do if the worker wants to refer the matter to arbitration. In some cases, even though there is a Bargaining Council, the arbitration may be done by the CCMA.

To refer the matter to the CCMA for arbitration:

• Fill in form LRA 7.143.
• Send a copy of the form to the employer, by fax, registered mail or personal delivery.
• Send a copy to the CCMA, by fax, registered mail or personal delivery. Attach proof that you have sent a copy to the employer, for example a fax transmission slip, registered mail slip, or affidavit confirming personal delivery.

The arbitration hearing

The CCMA or Bargaining Council will appoint a commissioner to arbitrate, will set the time and venue, and inform both parties. The arbitration hearing is relatively informal and the commissioner will encourage the parties to focus on the real merits of their cases, and to avoid legal technicalities.

After hearing evidence from both parties under oath, the commissioner can make a ruling that is legally binding and must be accepted by both parties. If the commissioner decides that the employer was wrong, the commissioner can order the employer to take certain steps or to pay compensation.

Who can represent employees and employers in an arbitration procedure?

Employees can only be represented by a fellow employee, a lawyer where the case does not involve misconduct or incapacity dismissal, union official or union office bearer. Employers can only be represented by a lawyer where the dispute is not a misconduct or incapacity dismissal, an employee of the business, or a representative from an employers' organisation.

In cases involving dismissal for misconduct or incapacity, lawyers are not allowed unless the commissioner specifically allows this.

Legal Aid will only be granted to an employee in cases where the LRA allows for lawyers to be present, and cases where the commissioner specially allows lawyers.

See Applying for legal aid.

Arbitration appeals

There is no appeal against an arbitration award.

But either party may request the Labour Court to review the arbitrator's decision, if they think:

• the arbitrator exceeded her or his powers
• there was something legally wrong in the proceedings
• the arbitrator did not consider relevant issues in accordance with the law

They must ask for a review within 6 weeks of receiving the arbitration decision.

Adjudication by the Labour Court

What is adjudication?

Adjudication is a formal court judgment, that is legally binding on all parties.

The Labour Courts are set up under the LRA and are based at the High Court in each province. High Court judges and lawyers with labour law experience staff the Labour Court. The Labour Court has the same status as the High Court.

How to refer a case for adjudication

If a case goes to the Labour Court for a court judgement (adjudication), phone the Registrar of the nearest Labour Court to get the necessary referral forms. The judge will hear evidence from both sides and make a judgment.

Who can represent workers and employers in a Labour Court case?

Employees and employers are entitled to be represented by a lawyer in Labour Court cases. Legal Aid may be granted to pay for the employee's lawyer.

Adjudication appeals

A Labour Appeal Court can hear appeals, and has the same status as the Supreme Court of Appeal. If either party does not agree with the decisions of the Labour Court, they can appeal to the Labour Appeal Court.