What is a Pre-conciliation process?
Section 135 of the LRA (the Act) requires that when a dispute is referred to the Commission, the Commission must appoint a commissioner to resolve the matter through conciliation within 30 days of the date the Commission received the referral. (provided of course that the Commission has jurisdiction to conciliate the dispute in question)
The Act does not prescribe how the appointed commissioner may seek to resolve the dispute during the prescribed period. Nevertheless, CCMA Rule 11 prescribes notice periods that the Commission must give to parties to the dispute prior to a scheduled conciliation hearing.
However, CCMA Rule 12 states that-
“The Commission or a commissioner may contact the parties by telephone or other means, prior to the commencement of the conciliation, in order to resolve the dispute.”
This is what is known as a “pre-conciliation” process and allows the parties the opportunity to try to resolve the matter without a formal hearing needing to take place.
What is the purpose of pre-conciliation?
There are many instances when it appears that a referral to the Commission is one that might easily be resolved either by the withdrawal (for example if the matter may not fall within the jurisdiction of the Commission) of the referral or the settlement of the dispute in question without the need for the parties to incur the time and costs associated with attending a physical formal conciliation hearing at CCMA premises or other similar venues.
In such circumstances the Commission will initially approach the applicant in the matter and explore the possibility of resolving the matter without the need to schedule a formal hearing. If the applicant consents to the CCMA seeking the pursuit of a possible solution, the Commission will proceed to make contact with the respondent normally telephonically as the next step in the pre-conciliation process.
Who can conduct a Pre-Conciliation process?
While the Commission may instigate the process through a commissioner or case management officer the process is strictly regulated by means of the following requirements:
a) the process requires that a CCMA case file must be opened and a case number generated;
b) the file requires the identification of the person the CCMA has appointed to conduct the pre-conciliation process;
c) the file cannot contain any information prohibited by CCMA Rule 16(1) which reads-
“Conciliation proceedings are private and confidential and are conducted on a without prejudice basis. No person may refer anything said at conciliation proceedings during any subsequent proceedings, unless the parties agree in writing or as ordered otherwise by a court of law ”
d) in the event that a settlement agreement flows from the pre-conciliation process, a copy of the agreement must be signed by the parties
e) a copy of the settlement agreement, together with a Certificate of Outcome confirming that the dispute is resolved and signed by a commissioner, will be sent to the parties and a copy placed on the case file.
What are the rights of the parties in a pre-conciliation process?
The parties are entitled and encouraged to check the credentials of the person conducting the pre-conciliation process to make sure that she or he is duly appointed by the CCMA to conduct the pre-conciliation process. Parties are however reassured that the process is monitored by means of a CCMA file identifying accountability.
The rights of parties are exactly the same as they are at a CCMA conciliation hearing. The conciliator may make suggestions in respect of the relevant legislation and practicalities surrounding the dispute in question in order to assist the parties to realistically assess the strength of their respective positions.
However, it is not the role of the conciliator to judge the relative merits of the respective versions of the parties, impose his or her values on the parties or determine the outcome of the dispute. No party is required to settle the dispute if they do not consider it to be in their best interest to do so.
If there is no settlement the unresolved matter may be scheduled for a conciliation hearing or in some instances, a certificate of outcome will be issued recording that the matter remains unresolved.
If there is a settlement agreement what needs to be contained in it?
An enforceable settlement agreement needs to include at least33 the following information-
a) The correct citation of the parties.
b) Identification of the issue(s) in dispute that have been resolved. For example, is the settlement only in respect of an alleged unfair dismissal or is it respect all potential disputes in relation to the contract of employment in question such as outstanding leave pay or notice pay in addition to the dismissal dispute?
c) What action, if any, must be taken by each respective party and when. For example, if an employer agrees to pay an employee an amount of money in settlement of the dispute, the agreement should specify the agreed upon amount, the method of payment and the date of payment.
What are the possible consequences of not complying with a settlement agreement secured during a pre-conciliation process?
A settlement agreement, once signed by the parties, becomes legally binding on them. Section 142A of the Act allows for the Commission, either by agreement between the parties or on application by a party, to make a settlement agreement of any dispute that has been referred to the Commission (and that if not settled a party has the right to refer to arbitration or to the Labour Court) an arbitration award.
In terms of section 143 of the Act an arbitration award issued by a commissioner is final and binding and it may be enforced as if it were an order of the Labour Court.