When an employee refers an unfair dismissal or unfair labour practice dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA), the commission is required to appoint a commissioner to firstly attempt to resolve the dispute through conciliation.
Conciliation is a process in which a commissioner is required to help the parties to resolve their dispute.
At conciliation proceedings, in attempting to resolve the dispute, a commissioner is entitled to mediate the dispute, to conduct a fact-finding exercise and to make recommendations to the parties involved.
Negotiations or discussions at conciliation proceedings are strictly confidential and "without prejudice".
In other words, what is said at the conciliation proceedings cannot be used at a later stage by any of the parties.
At conciliation proceedings an employer may be represented by an employer's organisation to which it belongs and an employee may be represented by a trade union to which he-she belongs.
Any party to the dispute may also appear in person at conciliation proceedings but legal representation is not allowed.
The appointed commissioner must attempt to resolve the dispute through conciliation within 30 days of the date on which the CCMA received the referral.
In the event that conciliation fails, the commissioner must issue a certificate stating that the dispute has not been resolved.
Once the certificate has been issued, an employee is entitled to refer the dispute to arbitration, which can possibly be considered as a form of "mini trial".
Alternatively, an employee may request, when referring a dispute to the CCMA, that the dispute be set down for a process termed "con-arb".
The con-arb process is a rushed process in which conciliation and arbitration are set down for hearing on the same day.
If conciliation fails, the matter will proceed immediately to arbitration, without the employee having to fill in more forms in order to refer the matter for arbitration.
Previously, in terms of Rule 30 of the CCMA Rules, if an employee failed to attend the conciliation proceedings, the commissioner was entitled to dismiss the matter. The employee was, in effect, precluded from referring the dispute for arbitration.
The Labour Appeal Court has now interestingly held in the matter of Premier Gauteng vs Ramabulana and Others that the Labour Relations Act 66 of 1995 does not empower CCMA Commissioners to dismiss matters as a result of nonattendance by employees at conciliation proceedings.
In other words, even if an employee is absent from the conciliation proceedings, the commissioner is obliged to issue a certificate stating that the dispute has not been resolved.
The employee is therefore still entitled to refer the dispute to arbitration.
A commissioner is still, however, entitled to dismiss the dispute should the employee fail to attend the arbitration proceedings.
Considering that in con-arb proceedings conciliation and arbitration take place on the same day, the effect of the above mentioned judgment on con-arb proceedings is presumably that the commissioner is entitled to dismiss the matter after he has issued a certificate of non-resolution in respect of the conciliation proceedings.
lLavery Modise is director at Routledge Modise in association with Eversheds. He is helped by associate Sian Wilkins.