ANNEXURE D
CONCILIATION AND ARBITRATION GUIDELINES
| 1.1 | These guidelines deal with the manner in which the Council and its conciliators conduct conciliation proceedings. |
| 2.1 | The purpose of these guidelines are— |
| (a) | to inform users of the Council's conciliation process of the policies and procedures adopted by the Council in conciliation; |
| (b) | to help Conciliators perform their functions; and |
| (c) | to promote consistency in the Council's approach to conciliation proceedings. |
| 2.2. | These guidelines are drawn from the Commission for Conciliation Mediation and Arbitration's (C.C.M.A.) best practice, the decisions of Commissioners of the CCMA, the courts, and the law. |
| 3. | Applications for condonation |
| 3.1 | An unfair dismissal dispute must be referred to the Council within 30 days of the date of dismissal. If the 30-day time limit has expired, the dismissed Employee must apply to the Council for condonation, that is, permission to refer the dispute after the 30-day time limit has expired. |
| 3.2 | The application must be attached to the dispute referral form and served with it on the other parties to the dispute and lodged with the Council. |
| 3.3 | If at any time the Council becomes aware that the dispute was referred outside the 30-day time period, the Council may call on the applicant to apply for condonation. |
| 3.4 | The application must include a signed statement that explains the reasons for the delay and deals with each of the considerations set out in paragraph 3.8 below. |
| 3.5 | If the applicant requires condonation because he or she did not attend a conciliation meeting scheduled by the Council, the applicant must give reasons for failing to attend. |
| 3.6 | The other parties to the dispute must reply to the application within fourteen (14) calendar days of receiving it. This reply must also include a signed statement, which is to be served on the applicant and filed with the Council. |
| 3.7 | The applicant may reply to the other party's response within seven (7) calendar days of receiving it. The applicant must serve the reply on the other parties to the dispute and then file it with the Council. |
| 3.8 | The Conciliator must consider the application and any representations of the parties and must grant condonation to the applicant if there are good grounds for doing so. The Conciliator must consider the following:— |
| (a) | the degree of lateness. If the referral is only a few days late, this may weigh in favour of condonation; |
| (b) | the degree of fault of the referring party or his/her authorised representative. If the referral was late due to a circumstance beyond the control of the applicant, this should weigh against condonation; |
| (c) | the reasonableness of the explanation. If the explanation is improbable, this should weigh against condonation; |
| (d) | prejudice to the other parties to the dispute; |
| (e) | prospects of success. |
| 4. | Province in which dispute is to be conciliated |
| 4.1. | A dispute should be conciliated in the province in which the dispute arose. |
| 4.2. | The Council may arrange for conciliation to be held telephonically if in its opinion the circumstances justify this and it is practicable to do so. |
| 5. | Jurisdictional disputes |
| 5.1. | The policy of the Council is to discourage legal technicalities and to promote dispute resolution in the interests of social justice and labour peace. Accordingly its policy is not to determine jurisdictional disputes at conciliation. |
| 5.2. | If a party objects to the jurisdiction of the Council the conciliator may— |
| (a) | conciliate the dispute on the basis that attendance and participation of all parties is without prejudice; or |
| (b) | issue a certificate stating that the dispute has not been resolved. |
| 6. | Discretion to assume jurisdiction |
| 6.1. | If at any time the Council becomes aware that the dispute could have been resolved by another Bargaining Council, an accredited agency or in terms of a collective agreement the Council may, in terms of section 147 of the LRA |
| (a) | exercise its discretion to assume jurisdiction; |
| (b) | refer the dispute to the appropriate person or body for resolution. |
| 6.2. | In determining whether or not to assume jurisdiction in terms of section 147, the Council must be guided by whether: |
| (a) | the referral is an attempt to by-pass agreed or statutory procedures; |
| (b) | substantial injustice will be done by referring the dispute to the appropriate person or body for resolution; |
| (c) | the Council has jurisdiction. |
| 6.3. | If the Council declines jurisdiction it must give the parties brief reasons for its decision and advise the parties as to the appropriate person or body for resolving the dispute. |
| 7. | Failure to attend conciliation proceedings |
| 7.1. | If the applicant party attends a scheduled conciliation meeting and the responding party does not, the Conciliator may— |
| (a) | postpone the conciliation; or |
| (b) | issue a certificate that the dispute has not been resolved. |
Before issuing a certificate the Conciliator must be satisfied that the parties have received adequate notice of the place, date and time of the scheduled conciliation.
| 7.2. | If the applicant party does not attend a scheduled conciliation meeting and the responding party does, the Conciliator may— |
| (a) | postpone the proceedings; or |
| (b) | dismiss the referral. |
Before deciding to dismiss the referral, the Conciliator must be satisfied that the parties have received adequate notice of the place, date and time of the scheduled conciliation. If the referral has been dismissed, the Council must notify the parties that the referral has been dismissed.
| 7.3. | If a referral has been dismissed because a party did not attend a scheduled conciliation, the applicant party may refer the dispute to the Council again under a fresh dispute referral form. If the dispute being referred is about the fairness of a dismissal, and if the 30-day time limit for referral has expired, the party must apply for condonation in terms of paragraph 3 above. |
| 8. | Representation at conciliation proceedings |
| 8.1 | A party to a dispute may be represented only:— |
| (b) | by a member, an office bearer or official of that party's trade union or Employers' organisation; and |
| (c) | if the party is a juristic person, by a director or an Employee. |
| 8.2 | If a party objects to a representative or the Conciliator is of the opinion that a representative is not authorised, the Conciliator must decide whether that representative may attend. |
| 8.3 | A dispute about the status and entitlement of a representative is a factual dispute. The Conciliator may call upon any person to demonstrate why he or she should be admitted as a representative. The Conciliator may request documentation, such as the constitution, pay-slips, the contract of employment, the prescribed form listing the directors of a company, recognition agreements. Representatives must be prepared to tender evidence in support of their status. |
| 9. | Applications for postponement |
| 9.1 | The Council may, on application, postpone a conciliation hearing only in special circumstances. This policy is based on the fact that the Act emphasises expeditious dispute resolution and postponement inevitably causes delay. |
| 9.2 | The Council will not allow matters to be postponed unless— |
| (a) | there is good reason to do so ; |
| (b) | the application is in good faith; |
| (c) | the application is made as soon as practicable; and |
| (d) | the other parties to the dispute are not unduly prejudiced. |
| 9.3 | If a postponement will result in expiry of the 30-day period allowed for conciliation (in s135), the party seeking the postponement must furnish the Council with written proof that the parties have agreed to extend the 30-day period. |
| 10. | Impartiality of Commissioners |
| 10.1. | A Conciliator must be independent, and must be seen to be independent. The Conciliator should disclose any interest or relationship that is likely to affect their impartiality or which might create a perception of partiality. |
| 10.2 | After disclosure, a Conciliator may conciliate if both parties so desire but should withdraw if he or she believes that a conflict of interest exists irrespective of the view expressed by the parties. |
| 10.3 | If a party objects to a Conciliator conciliating the dispute, the Conciliator should not withdraw if he or she determines that the reason for the objection is not substantial and he or she can nevertheless act impartially and fairly, and that withdrawal would cause unnecessary delay or would be contrary to the ends of justice. |
| 10.4 | Conciliators must conduct themselves in a way to avoid any inference of bias. |
| 11.1. | These guidelines lay down general principles to guide the Council's Conciliators and staff in the exercise of their powers and functions. These principles are not hard and fast rules and every case presented to the Council must be considered on its merits. |
