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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:

Dismissals for any reasons relating to probation,
Any unfair labour practice relating to probation.

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 unprotected strikes. These disputes will be referred to the Labour Court.

Objections to the con-arb process:

No objection will be allowed for disputes relating to probation,
An employee may object by indicating such on the 7.11 form (item no.11),
An employer may object to this process by giving written notice to the CCMA at least 7 days prior to hearing.

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 employee must complete the LRA 7.11 form and ensure that it is signed by the referring party.
The form must be served on the other party by hand, registered post or by fax. You will need to prove that your employer received a copy of the referral so you should therefore keep a copy of the transmission slip, postal receipt etc.
Proof of service must be attached to the referral form.

The form must be submitted to the CCMA.

Time limits:

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:

discussions are held concerning the settlement of the matter to the mutual satisfaction of the parties;
if no settlement is reached the proceedings continue into an arbitration.

During the second stage (arbitration stage) of the con-arb the parties could be expected to;

summarise their case through providing opening statements,
submit their case proving their arguement and disproving the arguement of their opponent. Con-arb is a more formal process than Conciliation and therefore evidence, including the leading of witnesses and producing relevent documents, may be necessary to successfully prove your case. Parties may cross -examine each other and the witnesses. Legal representation may be allowed. ; and
sum up their case in their concluding arguements when the accepted legal principles should be applied to the evidence submitted.

Legal Representation

In con-arb proceedings a party to the dispute may appear in person or be represented only by-

a. a legal practitioner;
b. a director or employee of the party; or
c. any member, office-bearer or official of that party's registered trade union or registered employers' organisation.

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-

a. the commissioner and all other parties consent; or
b. the commissioner concludes that it is unreasonable to expect a party to deal with the dispute without legal representation, after considering.

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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