Written by Ivan lsraelstam, Chief Executive of Labour Law Management Consulting.
The Labour Relations Act (LRA) provides for a ‘short-cut’ process called con-arb which stands for conciliation-arbitration. Conciliation is the process whereby a CCMA or bargaining council (BC) mediator tries to assist the employer and employee to reach an out-of-court agreement. It is a peace-making exercise that is intended to end in a settlement agreement and NOT in an award (judgement).
Arbitration, on the other hand, is a judicial-type process that usually occurs if a conciliated settlement is not achieved. At arbitration the employer and employee do not negotiate an agreement. Instead, they bring and present evidence as in any court case. Then the arbitrator, after hearing all the evidence, makes a finding as to which party was in the wrong.
Normally, if the conciliation meeting fails to produce a settlement and the employee applies for arbitration, the arbitration hearing is scheduled for several weeks or months later.
Con-arb is when, instead of scheduling the arbitration for a later date, it is held on the same day, the very MINUTE that conciliation fails! Thus, the parties have no time after the conciliation meeting to prepare their evidence and arguments for the arbitration!
Con-arb is not compulsory for all types of dispute. It is compulsory when the dispute concerns:
- The dismissal of an employee for any reason relating to probation
- Any unfair labour practice relating to probation
In addition, if neither party objects to con-arb then con-arb will take place even if probation is not involved, provided that the dispute concerns:
- A non-strike dismissal for conduct or capacity
- Constructive dismissal
- The employer’s failure to substantially preserve the employment conditions of employees when transferring them in terms of section 197 of the LRA
- An employee who does not know the reason for the dismissal
- An unfair labour practice
Therefore, on receiving any con-arb notice a party who does not want con-arb must lodge a formal objection at least 7 days in advance of the set hearing date.
As the parties seldom get more than 14 days advance notice of a con-arb it is essential for employers and employees who receive con-arb notices to:
- Realise straight away that it is a con-arb that has been scheduled
- Understand what con-arb means for them in practice
- Begin immediately with preparations for the con-arb
Included in these preparations should be:
- The preparation of the witnesses of truthful, relevant and accurate testimonies
- Collecting and preparing documentary and other evidence
- Responses to anticipated evidence that the opposing party could bring
- Preparation of case arguments and case law
Details :
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