Type: Information sheet
How to...
Sections
No sections foundInformation sheet
How to...
How to...
How to...
How to...
How to...
How to...
How to...
Sections
- Information sheet:
Managing Conduct & Capacity in the Workplace - Information sheet:
The goals of workplace discipline - Information sheet:
Labour legislation that regulates the employment relationship - Information sheet:
Sources of law that govern the employment relationship - Information sheet:
Which institutions can resolve workplace disputes? - Flow diagram:
SA Dispute Resolution Institutions
Information sheet
An employee may challenge a decision taken by an employer following a disciplinary hearing or incapacity enquiry.
Disputes must be referred to the right place. Depending on the type of dispute, there are a number of institutions where disputes may be referred.
A number of Dispute Resolution Institutions exist, some which were established in terms of labour legislation, and others which have powers to determine employment related disputes. In brief, these institutions are:
- The Constitutional Court;
- The Supreme Court of Appeal;
- The High Court;
- The Labour Appeal Court;
- The Labour Court;
- The Commission for Conciliation, Mediation and Arbitration (CCMA);
- Bargaining Councils;
- Accredited Private Agencies; and
- The Department of Employment and Labour.
The Constitutional Court
- The main function of the Constitutional Court is to ensure that the supremacy of the Constitution is upheld.
- The Constitutional Court may review any decisions of the Labour Court or Labour Appeal Court or the Supreme Court of Appeal that are unconstitutional.
- Decisions of the Constitutional Court are binding on all other courts.
The Supreme Court of Appeal & The High Court
- The Supreme Court of Appeal hears and determines appeals against any decision of a High Court.
- Decisions of the Court are binding on all lower courts.
- Decisions of the High Courts are binding on Magistrates’ Courts within the respective areas of jurisdiction of the High Courts.
The Labour Appeal Court
- The Labour Appeal Court is superior to the Labour Court, and both courts are superior to the CCMA and bargaining councils.
- The Labour Appeal Court is the final court of appeal in respect of all judgments and orders made by the Labour Court in respect of the matters that fall within its jurisdiction.
- A decision of the Labour Appeal Court is binding on the Labour Court.
- On constitutional issues an appeal will go to the Supreme Court of Appeal (SCA) with final confirmation of decisions on a constitutional issue being taken to the Constitutional Court.
The Labour Court
The intention of the drafters of the Labour Relations Act 66 of 1995 (LRA) was to assign more complex and human rights related labour disputes to the Labour Court.
The Labour Court has the following functions and powers:
- It may determine any dispute that is specifically referred to it in terms of the LRA, the Basic Conditions of Employment Act 66 of 1997 and the Employment Equity Act 55 of 1998.
- It may determine certain appeals and reviews.
- It may make appropriate orders such as: granting interdicts; awarding compensation, damages and costs; and declaratory orders.
The CCMA
- The CCMA plays a major role in labour dispute resolution.
- In terms of the LRA disputes can be referred to the CCMA or applicable bargaining councils for resolution.
- One of the main functions of the CCMA is to conciliate and arbitrate labour disputes. The majority of disputes referred to the CCMA are unfair dismissal and unfair labour practice disputes, as well as claims for statutory or contractual monies owing to employees.
- The CCMA is a ‘creature of statute’. This means that the CCMA was created by the LRA and can only function within its parameters and the parameters of other labour statutes (which give it specific powers).
- The CCMA therefore cannot resolve any disputes or perform any functions that the LRA or other related statutes do not allow it to perform.
- Rulings and awards issued by CCMA commissioners may be taken on review, or appeal in limited circumstances, to the Labour Court.
- The CCMA is bound by decisions of the Labour Court, the Labour Appeal Court and the Constitutional Court.
Refer to CCMA website: https://www.ccma.org.za
Bargaining Councils
- Bargaining councils are made up of one or more trade unions and one or more employers’ organisations in a specific sector or industry.
- The main purpose of bargaining councils is to promote collective bargaining and facilitate dispute resolution in the sector concerned.
- In terms of the LRA certain disputes between parties to a bargaining council must be referred to the bargaining council for resolution (see s 51(3) footnote 11 of the LRA).
- In those instances the bargaining Council performs the same dispute resolution functions as the CCMA.
- Awards made by bargaining council arbitrators may be taken on review, or appeal in limited circumstances, to the Labour Court.
- Bargaining councils are bound by decisions of the Labour Court, the Labour Appeal Court and the Constitutional Court.
Refer to the list of bargaining councils:
https://www.gov.za/sites/default/files/gcis_document/201409/gg31107nn682pg88-91.pdf
The Department of Employment and Labour
The Department of Labour (now the Department of Employment and Labour) was established in 1994 (replacing the previous Department of Manpower) and its functions include the following:
- developing and formulating labour market policy and proposals;
- administering the Unemployment Insurance Fund and Compensation for Occupational Illnesses and Diseases system;
- administering and monitoring occupational health and safety; and
- developing, enforcing and administering labour legislation.
Refer to the list of Department of Employment and Labour website:
The National Economic Development and Labour Council (NEDLAC)
- While NEDLAC is not a dispute resolution institution per se, it is one of the institutions created to facilitate the transformation of relationships in the labour market.
- The NEDLAC Act was passed in 1994 after having been agreed to unanimously by all political parties represented in Parliament.
- NEDLAC was launched in 1995 and is “a representative and consensus-seeking body where parties will seek to reach agreement through negotiation and discussion based on proper mandates”.
- The four NEDLAC constituencies are organised labour, government, organised business and the community.
- All proposed labour legislation, regulations and codes of good practice, as well as socio-economic related legislation are considered by NEDLAC before they are introduced to Parliament.
- CCMA demarcation awards (determining whether a particular bargaining council has jurisdiction over an employer and its employees) must also be referred to NEDLAC for comment before being issued.
How to...
Sections
- How to guide:
What is Conciliation and Arbitration - Information sheet:
What is a con-arb process? - Table:
What is the difference between Conciliation & Arbitration - Flow diagram:
Telephonic Conciliation Process - Information sheet:
Summary of the Stages of a Conciliation Hearing - Information sheet:
Summary of the Stages of an Arbitration Hearing - Flow diagram:
Stages in a Conciliation Hearing - Flow diagram:
Stages in an arbitration hearing - CCMA Information sheet:
Inquiry by Arbitrator - Information sheet:
Pre Conciliation
Information sheet
Summary of the Stages of an Arbitration Hearing
1. Introduction
During the introduction, the commissioner will start recording the process, stating the case details and asking the parties to state their names and positions (for example, manager/employee). The commissioner will deal with what language will be used and will explain the procedure that will be followed. The commissioner will describe the process of arbitration and explain the parties’ rights. The commissioner may ask the parties whether they would like to go back into conciliation mode to try to resolve the matter before proceeding with arbitration.
2. Preliminary issues
Before proceeding with the arbitration, the commissioner must ensure that the CCMA has the power or authority to hear the matter (jurisdiction). Furthermore, if a party wants to have legal representation, the application must be made at this stage (if this has not already occurred in writing). Any other preliminary issues should be raised at this stage.
3. Outline and narrowing of issues in dispute
The commissioner may ask the parties to explain what the dispute is about. This is usually done in the form of opening statements where both parties explain why they see the dismissal as being fair or unfair. The commissioner may also ask specific questions to obtain background information such as the date of employment, the date of dismissal and the reason for dismissal. The commissioner will then try to determine which issues are not in dispute (common cause) and which issues are in dispute. Evidence is only needed on issues that are in dispute.
4. Hearing of evidence
The parties then present their case. They may call witnesses and submit relevant documents. After each witness has testified, the other party can cross-examine that witness. Cross-examination may be used to get additional information from the witness, to dispute anything that the other side does not agree with and to put a version to the witness so that s/he has an opportunity to respond to it. After that, the party that called the witness may re-examine the witness (based only on the questions that witness faced during cross-examination).
5. Concluding arguments
During this last phase of the hearing, the parties are invited to argue their case. They may summarise the evidence that was presented on which they would like to rely; indicate what evidence they feel carries more weight than others and argue why a certain version should be accepted or not; refer to case law; and explain what outcome they seek..
6. Arbitration award
The arbitration award, which is issued within fourteen (14) days after the hearing, is the final binding outcome of the matter.
How to...
Sections
- How to guide:
What is Conciliation and Arbitration - Information sheet:
What is a con-arb process? - Table:
What is the difference between Conciliation & Arbitration - Flow diagram:
Telephonic Conciliation Process - Information sheet:
Summary of the Stages of a Conciliation Hearing - Information sheet:
Summary of the Stages of an Arbitration Hearing - Flow diagram:
Stages in a Conciliation Hearing - Flow diagram:
Stages in an arbitration hearing - CCMA Information sheet:
Inquiry by Arbitrator - Information sheet:
Pre Conciliation
Information sheet
Summary of the Stages of a Conciliation Hearing
1. Welcome and formalities
The commissioner will introduce him/herself and ask the parties to do the same and complete the attendance register. The commissioner will explain the process to be followed and check if an interpreter is needed. The commissioner is likely to explain that his/her role is to assist the parties to reach an agreement to resolve the matter, and remind parties that the proceedings are “without prejudice”. This means that nothing said during the hearing may be used in any other process, such as an arbitration hearing, unless this is ordered by a court. The commissioner may also advise parties that they should not find it strange if the commissioner asks to speak to each party separately. The commissioner is also likely to set rules of conduct expected during the process (for example no interrupting, phones off and no rude behaviour). The commissioner will also deal with any issues raised in terms of representation and jurisdictional issues.
2. Story-telling
The parties will have the opportunity to tell the commissioner their side of the story, largely without interruption. The commissioner may make brief notes for purposes of reminding him/her of issues which need to be raised as part of the conciliation process, but these notes may not be used by any party once the hearing has concluded. The commissioner may ask questions of clarification during this stage.
3. Problem solving
There are a number of ways in which the commissioner may try to assist the parties to settle the dispute. For example, the commissioner can talk to the parties in a joint session or may talk to one of the parties alone to investigate the basis on which that party is likely to accept a settlement of the dispute. The commissioner may also explain and clarify certain aspects of the law during this part of the process, so that parties may judge for themselves the strength of their case. This may include some “reality-testing” whereby the commissioner provides some indication of the likely strengths and weaknesses in each
party’s case, reminding the parties that s/he has not had the benefit of hearing any evidence relating to the dispute. The commissioner will try to generate proposals or an offer to settle from one or both parties. The commissioner may also make an advisory arbitration award or mediator’s proposal to settle
the dispute in certain circumstances. This may be a compromise position and either party is free to accept or reject the proposal. The parties are free to decide whether to accept or reject an offer and the commissioner cannot force a party to accept an offer.
4. Settlement and conclusion
Should the parties agree to settle the dispute, the commissioner will assist the parties by drafting a “settlement agreement”, which will be binding on the parties. The commissioner will explain that the agreement is in full and final settlement of the dispute. This means that the parties are bound by the agreement and they cannot take the matter further or dispute the terms of the agreement. After signature, the commissioner will provide both parties with copies of the agreement, bringing the matter to a close. If the matter remains unresolved, the commissioner will explain that the dispute may be referred to arbitration or, in some cases, the Labour Court. The commissioner will also issue a certificate indicating whether or not the matter has been resolved. The applicant will need this certificate to apply for arbitration if the matter remains unresolved unless the matter is a Con/Arb and will proceed to arbitration immediately or on a later date.