THE CON-ARB PROCESS
The law now makes provision for the con-arb process, which is a speedier
one-stop process of conciliation and arbitration for individual
unfair labour practices and unfair dismissals. This process allows
for conciliation and arbitration to take place as a continuous process
on the same day, if required.
Con-arb is cfompulsory in matter relating to:
The applicant/employee can decide whether to make use of con-arb.
If the employee elects for con-arb and the there no objection is
received from the respondent/employer, this process may be used for any
other dispute (conduct, capacity, where continued employment is
intolerable, less favourable terms after a s197 or s197A transfer,
reason for dismissal unknown, or an unfair labour practice.)
The con-arb procedure may not be used for dismissals relating to
These disputes will be referred to the Labour Court.
Objections to the con-arb process:
NOTE: Regardless of the employer objecting to this process, the employer must attend the proceedings.
Procedure for referral for Con- Arb:
The following steps should be followed;
The dismissed employee must refer
the matter to the CCMA or Bargaining Council within 30 days of the date
of dismissal. You calculate the 30 days by excluding the
first day and including the last day. All days are counted which means
weekends and public holidays are included. If the
employer makes a final decision to dismiss, say for example the outcome
of an appeal hearing, the matter must be referred within 30 days of that
final decision to dismiss.
Unfair Dismissals: The dismissed employee must refer the matter to the CCMA or Bargaining Council within 30 days of the date of dismissal. You calculate the 30 days by excluding the first day and including the last day. All days are counted which means weekends and public holidays are included. If the employer makes a final decision to dismiss, say for example the outcome of an appeal hearing, the matter must be referred within 30 days of that final decision to dismiss.
Discrimination: The employee must refer the matter to the CCMA or council within six (6) months of the date of the act or omission, which allegedly constitutes some form of unlawful discrimination.
If the above time periods have lapsed, the referring party must bring an Application for Condonation.
Processing of the Referral at
the CCMA :
The CCMA must give both parties at least 14 days notice of the hearing date, time and venue. If a party fails to appear or to be represented, the con-arb will continue on the scheduled date.
The Con- Arb Hearing:
The Commissioner may conduct the con-arb in a manner that the Commissioner considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities.
During the first stage (conciliation stage) of the con-arb the parties could generally expect the following:
During the second stage (arbitration stage) of the con-arb the parties could be expected to;
In con-arb proceedings a party to the dispute may appear in person or be represented only by-
If the dispute being considered is about the fairness of a dismissal and a party has alleged that the reason for the dismissal relates to the employee's conduct or capacity, the parties are not entitled to be represented by a legal practitioner in the proceedings unless-
Awards and Execution
The Commissioner will make a final and binding decision, called an Arbitration Award, within 14 days.
It will no longer be necessary for parties to proceed to the Labour Court in terms of section 158(1)(g) and have the Labour Court make an arbitration award an order of Court before it can be enforced. Arbitration awards have the same status as orders of a Civil Court (such as the Labour Court, the High Court or the Magistrate's Court.) If the award is for payment of an amount of money, the successful party will be able to issue a warrant of execution and have the Deputy Sheriff enforce the award.
Other awards such as reinstatement or awards for specific performance, will be enforced through the Labour Court in contempt of Court proceedings. All that will be necessary is for the director of the CCMA to certify an award as an arbitration award.
Amendments to section 142(9) give the CCMA power to deal with contemptuous conduct, subject to the oversight of the Labour Court.
Information contained herein is based on documentation available from the CCMA
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