Down the Rabbit Hole with Caron: Decoding Conciliations.

Happy Thursday, and welcome to another Down the Rabbit Hole...

Today, I'll be discussing what to expect in a Conciliation at a Dispute Resolution Body, such as CCMA, a relevant bargaining council or a suitably accredited agency.

I know that this process can seem scary and littered with legal jargon, so I'd like to de-mystify it a bit for those who haven't had to go through this before. I've represented a party at conciliations hundreds of times – at one point I was even at the CCMA a few times every week! So, I feel qualified to guide you through the process, from when you walk in to the offices, all the way to the end.

Let's discuss what this process is, first. A conciliation is a legally required process to attempt to resolve a workplace dispute, however it's important to know that a resolution or outcome is voluntary. Since the objective is to try to settle the dispute, it is up to the parties involved to decide together what the outcome will be and what the terms of that outcome will be.

It is, essentially, a private and confidential discussion between the involved parties in which they try to negotiate an outcome which is acceptable to them both. An appointed conciliator is present to facilitate. The entire process is not recorded and is without prejudice, which means whatever is said cannot be used against the other party at a later stage, unless agreed upon or as a result of a court order. None of the parties can force a settlement – it is entirely by agreement. If conciliation fails, then the aggrieved party has the option to move on to the next process, which is an Arbitration.

The advantage of a conciliation is that it is a fast and free method of resolving a dispute. It is an opportunities for the parties to discuss their dispute with the help of a skilled facilitator, and, since it is confidential, parties are able to freely discuss ways to resolve issues.

Often, a dispute will require a process called a Con-Arb. This is when a Conciliation is held, and if there is no settlement, than an Arbitration is held afterward on the same day. The benefit of a Con-Arb is that the parties can try conciliate an agreement, and if it fails, an arbitrator can immediately be appointed to conduct the arbitration.

The disadvantage of a Con-Arb is that both parties will need to be prepared to proceed with the arbitration in case the conciliation fails, and this could mean that they would have to ensure all their witnesses were available for the arbitration just in case.

This can end up being a costly waste of time if there is any chance of settling at conciliation, and therefore many companies will object to the Con-Arb process being followed so that they can just send a single company representative to the dispute instead of sending an entourage with them.

From a sneakier point of view, it's sometimes valuable to object to the Con-Arb process, even if there is no intention of settling, as sometimes the opposing party will say something during the proceedings that will “show their hand”, and inadvertently show you what they are basing their case on. Forewarned is forearmed, I've found.

So, carrying on with what to expect on the actual day of your conciliation... you will have received a notification of a set-down date for your conciliation, which will give you the date, time, address and room number of the conciliation or con-arb. If there has been an objection to the con-arb process, it's important to still show up for the conciliation as set down. Sometimes, it is possible to have a conciliation over the phone, or via a Zoom or Teams meeting online. This was done a lot during the pandemic.

If the conciliation is held in person, then you should ensure that you get to the venue at least a half hour early. Depending on the dispute body you're going to, you might either just report to a reception desk, or you may be directed to a room where a roll-call will be held for all the disputes occurring at that time (which generally happens at CCMA).

If it's a roll-call situation, make sure to take a seat, and wait for the officer to start calling the case names. When you hear your case or name, clearly state that you are present. The officer will then check that the other party is there, and will direct you to a hearing room.

If the other party to the conciliation doesn't show up, then it is usual to wait 30 minutes in case they are just running late. If they don't arrive after 30 minutes, then the commissioner can decide whether to proceed in their absence, or postpone, or just issue a certificate of non-resolution.

Once you've been told what room your conciliation is in, go there without delaying, and wait for the commissioner to arrive.

Once they arrive, they will take charge and will introduce themselves, and ask if a translator is required. An attendance register will be completed. They will explain their role within the conciliation (which is to help guide the parties to settle), and will briefly explain the process.

The commissioner will remind parties that the conciliation is off the record, and will outline the rules of conduct expected (eg phones off, no rudeness, no raised voices etc), and will deal with preliminary issues like representation and jurisdiction. Representation would be who is permitted to represent either party at the conciliation, and jurisdiction will be regarding whether the dispute body has the legal jurisdiction to conciliate the matter. I'll discuss these a bit more later.

They will also check that the issue has been referred properly. This is the introductory stage.

The second stage of a conciliation is the story-telling stage. Each party will be given an opportunity to tell their side of the story, mostly without interruption unless the commissioner needs to clarify a point and ask questions. The commissioner will most likely make notes about possible issues to raise during negotiation. These notes are not admissible at a later stage.

The third stage of the conciliation is the negotiation / problem-solving stage. This is where the commissioner will try to facilitate reaching a settlement between the parties. They may hold a joint session with the parties, or consult privately with each party, or a mixture of both. They will also clarify legal aspects so that the parties will be able to judge the strength of their case, and be better able to decide on a suitable settlement. It is important to clarify here that this is not an arbitration, so it isn't a complete dissection of the issue, and the commissioner won't have the background knowledge of the issue in order to make a judgement. A commissioner will encourage a settlement agreement, but cannot force or impose one. The parties are free to accept or reject the proposals on offer.

The fourth stage is the resolution stage. If the parties agree on a settlement, then the commissioner will help them draft a settlement agreement which is legally binding and a full and final end to the dispute. If there is no agreement, then the commissioner will issue a certificate of outcome showing non-resolution, and will advise on the next course of action which can be followed, which could be an arbitration, or labour court. Some unresolved disputes can also lead to a strike or lock-out, and the commissioner will advise the parties accordingly.

Now, to circle back to the issues of representation and jurisdiction...

Representation involves who is permitted in the conciliation for each party. A person who is not permitted to represent a party will be asked to leave by the commissioner.

So who exactly is permitted to represent a party at a conciliation?

If the party is an employer, then any of the duly appointed company employees may represent the employer. If the employer belongs to a registered Employers Organisation, then they may be represented by a member of the EO.

If the party is an employee, then they have to be present, but may be assisted by a member of official of a registered Trade Union which they have membership of.

If the party is a Trade Union or an Employers Organisation, then they may be represented by a official or member or employee of their party.

Legal representation is generally not permitted at a conciliation, and a commissioner will request any legal representative to remove themselves, since the point of a conciliation is not to go into the details, but is rather about finding common ground. It is important to note though that sometimes a party might be represented by a lawyer who is an employee or member of the party.

Now, onto jurisdiction. Jurisdiction involves whether the Dispute Body has the legal power to adjudicate a certain type of issue. For example, the CCMA and Bargaining Councils have jurisdiction over unfair dismissal issues (under the earning threshold).

Also though, the CCMA won't have jurisdiction over unfair dismissal issues if a relevant Bargaining Council exists, so, for example, an unfair dismissal dispute between a metalworker and an engineering company would have to be referred to the MEIBC (Metal and Engineering Industries Bargaining Council). This is generally because specialised industries may have their own laws which, while grounded in the LRA and BCEA, have additional industry-specific agreements.

While we are discussing this topic, I'd like to share some of my tips and tricks.

Always arrive early.

Dress in a smart and respectable way – as if you're going to an interview.

Make sure you have all your papers with you, as well as a print-out of the referral form and the set-down notice.

Make sure you understand the strength of your case, and what you are basing your dispute on. It's also useful to have a list of these.

Always have a pen and paper with you, and make notes if the other party mentions something you may need to clarify later.

Switch your phone off, or put it on silent.

Always bring something to drink with you, like a bottle of water. You won't believe how often you get a scratchy throat from nerves. Bring cough sweets too.

Be open to the possibility of reaching a settlement.

Be polite and congenial, and never raise your voice or interrupt. Never swear. You're trying to make a good impression.

If you feel provoked, or angry, take a minute to calm yourself. Sometimes the other party will try to provoke an angry response – don't give them what they want. If you need a break or a brief remission, then ask for it.

Always thank everyone afterwards, and shake hands. You are not there to fight, you are there to resolve an issue.

Personally, I will always address the commissioner as “honourable commissioner”, or whichever honorific they request. If there is a translator, I will address them by their chosen honorific and their surname (make a note of it when they introduce themselves).

And remember, this isn't a process where you can be forced to agree to a resolution.

I hope I've managed to make the process a little less scary through this article. It's really not a process where you should feel scared or nervous. It really is about finding an outcome which is mutually agreeable, without wasting too much time and energy.

Thank you for reading.