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Five steps you CAN NOT afford to ignore in the run-up to a CCMA conciliation

by , 20 June 2013
Let's say you've conducted a disciplinary hearing and dismissed your employee, but he decides to take things further for a CCMA conciliation (con-arb) hearing. But now that you've received notification of a scheduled CCMA conciliation hearing, what do you do? Read on to discover the five steps you have to take in the run-up to a CCMA conciliation.

In an attempt to save time wasted by separate conciliation and arbitration proceedings in matters not resolved at conciliation, authorities introduced the process called 'con-arb' in August 2002. According to the Labour Relations Act, this process allows the conciliating commissioner to proceed direct to arbitration.

What exactly is 'con-arb'?

Con-arb is an abbreviation for conciliation – arbitration. 'This means if the parties do not settle at conciliation, the matter immediately proceeds to arbitration. The two separate hearings become one hearing with two parts, conciliation and arbitration,' explains the Labour Law for Managers Loose Leaf Service.

What does this mean for you?

If your employee decides to dispute his dismissal, you'll receive notification of a scheduled CCMA conciliation hearing. At this stage, it's crucial that you know how to proceed because what you do here could determine your fate during the proceedings.

So what should you do in the run-up to CCMA conciliation?

Follow these five steps in preparation for a scheduled CCMA conciliation hearing

Step #1: Your first action is to immediately fax a letter to the CCMA objecting to the con-arb process. 'The letter will be addressed to the Commission for Conciliation, Mediation and Arbitration, and marked for the attention of the Commissioner named in the notice of the scheduled hearing you received,' explains the Loose Leaf.

Step #2: The next step is to get the ball rolling for an internal management meeting to check your procedures leading up to the dismissal. Contact the chairperson who conducted your employee's disciplinary hearing, the complainant, the investigator and the chairperson who conducted your appeal hearing and arrange to meet with them as soon as possible.

In addition, put together folders containing copies of each of the following documents:

  • The minutes of the disciplinary hearing.
  • The minutes of the appeal hearing.
  • The chairperson's finding.
  • The investigation diary or investigator's notes
  • Each witness's written statement.

Step #3: Conduct the internal preparation meeting. 'Start by discussing the original complaint against the accused, the investigation of the complaint and then proceed from there in a logical sequence,' advises the Loose Leaf.

Remember that the purpose of this meeting is to ensure:

  • The original complaint was justified and called for investigation and disciplinary action.
  • The investigation procedure was fairly and thoroughly carried out and there was no bias in favour of either party.
  • The disciplinary hearing was conducted with fair and correct procedures.
  • The Chairperson arrived at his finding in an unbiased manner and strictly on the balance of probabilities.

Step #4: Evaluate your options. Generally, up to the point of conciliation, expenses will probably be minimal and will be restricted to time spent in preparation. However, as matters proceed, costs could add up. These could include preparation time and expense involved, like legal fees, CCMA costs and the economic costs if the award goes against you, for example, back pay or reinstatement etc.

'If your case is weak take the cheaper route, there's no point in spending R100 000 on defence if you can settle and close the matter for R40 000,' cautions the Loose Leaf.

Step #5: Schedule your own pre-conciliation meeting. While, the commissioner appointed to conciliate is empowered to hold a pre-conciliation meeting at the CCMA in an attempt to have the parties agree on early settlement, they don't often do this. So if you can resolve the dispute before going anywhere near the CCMA, do so!

Your internally held preparation meeting (step 3 above) and the result of the cost benefit analysis (step 4) are likely to provide you with a firm sense of direction. And it's advisable at this stage to contact your ex-employee and request him to come into your offices for a meeting and tell him you feel it would be advantageous to both sides.

Following these steps will help you thoroughly prepare for a scheduled CCMA conciliation hearing.

You don't have to be a lawyer to win your CCMA case…
Here's how to do it yourself.

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