Be prepared for con-arb at the CCMA

By Ivan Israelstam, chief executive of Labour Law Management Consulting

The CCMA hears over 180 000 cases a year. This can result in backlogs and delays in resolution of disputes. As a consequence the law provides for a speedier dispute resolution process called con-arb, which stands for conciliation-arbitration.

Regardless of whether con/arb is applied the process always begins with conciliation. This is a peace-making process whereby a CCMA or bargaining council (BC) mediator tries to assist the employer and employee to reach an out-of-court agreement and a quick resolution of the dispute. The conciliating commissioner has no authority to make an award (judgement).

On the other hand arbitration is a judicial-type process that usually occurs if a conciliated settlement is not achieved. At arbitration the employer and employee do not negotiate an agreement. Instead, they bring and present evidence as in any court case so that the arbitrator can make a finding.

Con-arb is when, instead of scheduling the arbitration for a later date, it is held on the same day, the very minute that conciliation fails! Thus, the parties have no time after the conciliation meeting to prepare their evidence and arguments for the arbitration!

Therefore, on receiving any con-arb notice a party who does not want con-arb must lodge a formal objection at least 7 days in advance of the set hearing date. However, such an objection will not be valid if the dispute concerns an unfair dismissal relating to probation or an unfair labour practice relating to probation.

As mentioned, the purpose of con-arb is to cut down drastically the time period between conciliation and arbitration. It could also have the effect of forcing the parties to make every effort in trying to settle the matter at conciliation. This is because they are aware of the arbitration that will take place immediately conciliation fails.

It is essential for employers and employees who receive con-arb notices to:

• Realise straight away that it is a con-arb that has been scheduled
• Understand what con-arb means for them in practice
• Begin immediately with preparations for the con-arb.

This is particularly so because the parties seldom get more than 14 days advance notice of a con-arb.

The parties need to enter into intensive preparations the moment they receive a con-arb notification because:

• 14 days is very little for purposes of preparation
• The parties have to prepare for both conciliation and for arbitration
• Preparation for arbitration in particular takes a great deal of time.

Included in these preparations should be:

• The preparation of the witnesses of truthful, relevant and accurate testimonies
• Collecting and preparing documentary and other evidence
• Responses to anticipated evidence that the opposing party could bring
• Preparation of case arguments and case law.

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