Being summoned to the Commission for Conciliation, Mediation, and Arbitration (CCMA) is one of the greatest fears for a business owner. The CCMA has been typecast as a villain who always favours employees. This, like most stereotypes could not be further from the truth. 

So, What Exactly is the CCMA?

The CCMA is a statutory body established in terms of Section 112 of the Labour Relations Act, 66 of 1995 (LRA). The creation of the CCMA is in to further the rights set out in Section 23 of the Constitution, which enshrines rights of labour relations. 

The CCMA is an independent body, with a mandate to “advance economic development, social justice, labour peace and the democratisation of the workplace”. 

The CCMA plays a vital role in resolving workplace disputes. Among its various functions, the CCMA facilitates a conciliation process that aims to bring about the amicable resolution of disputes between employers and employees. 

In this guide, we will explore the conciliation process in the CCMA, outlining its purpose, procedures, and key considerations. By understanding the conciliation process, both employers and employees can navigate the CCMA effectively and strive for fair and equitable resolutions.

Understanding the Purpose of Conciliation:

Conciliation serves as a platform for parties to engage in constructive discussions in an attempt to find a mutually acceptable resolution to the dispute. The primary objective of conciliation is to promote dialogue, identify common ground, and explore potential solutions. 

Conciliation is a without prejudice process. This means that it is off the record and no party may use what is discussed against the other in other proceedings, such as arbitration. This aspect of conciliation allows parties to openly discuss their dispute so as to meaningfully engage with each other, without fear that any offers, admissions, or concessions can be used against them at a later stage. 

Although conciliation forms part of the formal processes of the CCMA, the conciliation itself does not have any fixed formalities to follow. The process is facilitated by a neutral and impartial CCMA commissioner. The commissioner’s function is to act as a mediator so as to assist the parties in reaching a settlement which satisfies all parties to the dispute. 

During conciliation proceedings, the commissioner will not decide how the dispute will be resolved. The parties are empowered to reach a decision together on the manner in which the dispute can be resolved. 

Initiating the Conciliation Process:

The conciliation process is initiated when one of the parties refers the dispute to the CCMA. The referring party will complete a CCMA 7.11 referral form which briefly sets out the parties involved, the nature of the dispute, certain facts about the dispute, and the desired outcome of the applicant. 

These forms can either be submitted online or in person. The referring party is required to serve the other party with a copy of the referral form. Once the referral forms have been served and filed, the CCMA will assign a commissioner to facilitate the conciliation process. 

Preparing for Conciliation:

Parties must prepare for the conciliation process for same to be successful. Although the commissioner does not make a decision in the matter, being prepared will assist parties in presenting their version of the dispute in a precise manner. This will assist all parties to gain a better understanding of the other’s position and what is sought. This will also assist the commissioner in understanding the position of both parties. In so doing, the commissioner will be able to guide the parties to enable them to reach an agreement. 

In order to prepare for conciliation, parties should familiarise themselves with the circumstances surrounding the dispute, the dispute itself, as well as their desired outcome. If both parties are familiar with the facts of the dispute it will greatly assist in narrowing the issues which are in fact dispute. 

The Conciliation:

The conciliation will commence with the commissioner introducing themselves to the parties and will ask the parties to introduce themselves as well. Hereafter, the commissioner will discuss the procedure, and explain that they are acting as an independent and impartial mediator whose function is to assist the parties in reaching an amicable resolution. 

The applicant (the referring party) will then be given an opportunity to state their version of what happened, why they believe they have been aggrieved, and what they seek as a resolution. Thereafter, the respondent (the other party) will be given an opportunity to state their version and to address what resolution they seek. 

After both parties have presented their version of the dispute, the commissioner will guide the parties in clarifying their positions and engaging in constructive dialogue. The commissioner will then encourage the parties to explore potential solutions, until the parties reach a settlement. 

Commissioners are trained professionals and deal with many different disputes. Generally, it will be clear to the commissioner, after the parties have started to explore potential solutions, whether the parties will be able to reach an amicable resolution. 

Reaching a Settlement:

It must be remembered that conciliation is not a zero-sum game. There are no winners or losers. The parties have the power to make decisions regarding what they believe is a suitable outcome. For both parties, this could be a way in which to mitigate risks if they were to lose their case. 

The ultimate goal of conciliation is to achieve a settlement that satisfies both parties. If an agreement is reached during the conciliation process, the commissioner will assist the parties by drawing up a settlement agreement. The parties then sign the agreement, and the dispute is resolved. 

The settlement agreement will contain the terms and conditions of settlement, as well as any necessary actions to be taken by the parties afterwards. The settlement agreement is binding on the parties, and non-compliance may lead to the sheriff being instructed to attach the non-complying party’s assets for execution. 

Implications of Unsuccessful Conciliation:

The implications of an unsuccessful conciliation depend on the type of dispute in question. The CCMA is tasked with facilitating various disputes, from unfair dismissal disputes to unilateral changes to employment. 

In certain disputes, such as unfair labour practice disputes, or unfair dismissal disputes, if conciliation is unsuccessful the commissioner will issue a certificate of non-resolution. Once this certificate has been issued, the applicant may refer the dispute to arbitration. 

In other disputes, such as unliteral changes to employment terms, or matters of mutual interest, if conciliation is unsuccessful the commissioner will either extend the conciliation period by thirty days, by agreement, or issue a certificate of non-resolution. In these types of cases, a certificate of non-resolution may enable the aggrieved employees to proceed with strike action. Provided that the necessary requirements are met. 

Closing Remarks:

The conciliation process in the CCMA provides parties a valuable opportunity for to resolve disputes amicably. By understanding the purpose, procedures, and key considerations of conciliation, parties can approach the CCMA with confidence and work towards fair and equitable resolutions. 

It is essential to prepare thoroughly, engage in constructive dialogue, consider settlement options that promote harmony, and where possible preserve working relationships.

Should you require guidance or assistance throughout the conciliation process, Quid Nunc Consulting is here to provide reliable and comprehensive human capital solutions tailored to your business needs. 

Contact us at info@qnc.co.za or give us a call at 067 402 0231 to learn more about how we can support your organisation's success.