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Legal Insight: New procedure can catch employers unawares

By Jan Truter

The so-called “con-arb” procedure was recently introduced as one of the amendments to the Labour Relations Act. It is an attempt to speed up the resolution of disputes at the CCMA and Bargaining Councils. While it might be a good initiative, employers would have to be more diligent. If not it could lead to embarrassment and unfortunate consequences.

In the past labour disputes would normally go through a two-stage process, namely conciliation and arbitration. If conciliation failed, the matter could be referred to arbitration, which would take place on some future date that could be months later. The conciliation process did not result in binding decisions and was often not taken
seriously. The previous two-stage process has now been combined into the so-called con-arb procedure for certain categories of cases.

In disputes about dismissals or unfair labour practices relating to probation, the CCMA must proceed with arbitration immediately after certifying that the dispute is unresolved. This means that the dispute must be arbitrated on the same day. Arbitration entails that evidence has to be led and that a final and binding decision can be made.. The parties would therefore have to prepare for the arbitration hearing in advance and have all witnesses and relevant evidence available immediately.

The con-arb procedure may also apply in cases not related to probation, namely where an employee was dismissed for misconduct or incapacity; where there was a constructive dismissal, or where the reason for the dismissal is unknown.

These cases represent the majority of disputes referred to the CCMA. However, in these cases the parties have an opportunity to object to the con-arb procedure. In order to be effectual, such objection has to be submitted in writing to the CCMA and the other party at least seven days prior to the scheduled date. Should these requirements not be met and the dispute is not resolved through conciliation, the matter must be arbitrated immediately.

Although the parties may not object to the immediate commencement of arbitration proceedings if conciliation fails, they may object to the same person being both conciliator and arbitrator. If any party objects, a different commissioner must be appointed as arbitrator.

From the above it is clear that one can no longer adopt a laissez-faire attitude to CCMA matters. One must bear in mind that the onus rests on the employer to prove that a dismissal was for a fair reason and that a fair procedure was followed.

The con-arb procedure means that the employer might be caught off guard. Owing to the absence of witnesses and insufficient preparation, the employer might not be able to prove to the arbitrator that an employee was fairly dismissed Most of us
know by now that this will probably have costly consequences.

Jan Truter is a founder of Labourwise, an on-line labour service with telephonic support aimed at small and medium sized businesses. He can be contacted on (021) 852 3499.

Disclaimer: The material contained in this article is provided for general information purposes only and does not constitute legal or professional advice. Neither the author
nor the publisher accepts responsibility for any loss or damage that may arise from reliance on information contained herein.

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The Big Change is a business strategy blog and newsletter published by Arthur Goldstuck, managing director of World Wide Worx, a leading technology research organisation based in Johannesburg, South Africa.

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