What is conciliation?
Conciliation is a process whereby CCMA accredited commissioners who are selected for the NBCRFLI panel of commissioners meet with the employer and employee parties in dispute, and explore ways to resolve the dispute. No legal representation is permitted in terms of the rules. This is a without prejudice and an off the record process.
In order for the parties to reach an agreement, both parties need to be present at the conciliation hearing. If one of the parties fails to attend the conciliation hearing, the matter will remain unresolved and may then only be resolved by arbitration or the Labour Court, depending on the type of dispute.
What is arbitration?Arbitration is an escalation of the dispute resolution process in that it is a more formal process than conciliation. This process differs from the conciliation process, as it does not promote negotiations. It is essential that the involved parties attend the arbitration. Failure of the referring party to attend the arbitration process means a commissioner may:
- dismiss the matter by using a written ruling or;
- adjourn the proceedings
If the referring party only attends the arbitration proceedings, a default award may be issued by the commissioner in favour of the referring party.
What are the benefits of attending the conciliation hearing?
- It is far more beneficial for parties to resolve disputes at the lowest level of resolution. By attending the hearing, both parties are able to avoid the unnecessary costs involved in the arbitration process. These costs are due to the length of the process, the possible attendance of witnesses, the time that the parties need to take from work to attend the arbitration and the extra administration involved.
- The NBCRFLI’s conciliation process is private, confidential, without prejudice and an off the record process.
- It is less time consuming than arbitration.
- The conciliation hearing is a process where a CCMA Accredited commissioner, selected by the NBCRFLI, meets with the parties in dispute, separately and/or together, and explores ways to settle the dispute by agreement.
- The NBCRFLI has 18 offices countrywide, thereby making it more convenient for Council stakeholders to resolve their disputes through the conciliation process.
What is the commissioner’s role during the conciliation hearing?A commissioner assists both parties to resolve the dispute and reach an agreement as soon as possible. The commissioner is independent and does not take sides; it is the commissioner’s duty to be impartial. The commissioner also plays an advisory role in terms of the Labour Relations Act.
How long does the conciliation and arbitration process take?
- When a conciliation hearing is scheduled, it is done so within 30 days of referral. Most conciliation hearings normally take 30 minutes to 1 hour.
- However, when a conciliation matter remains unresolved the party can refer the matter to arbitration. This is a 90-day process.
- It is important to note that the conciliation and arbitration processes need to be heard within 120 days.
What if I am not available on the date of the conciliation?The matter remains unresolved.
What if there is no agreement at the conciliation hearing?If the parties cannot reach an agreement at conciliation level, the matter remains unresolved and the dispute can be referred for arbitration.
How do I prepare for the conciliation hearing?
- Document all the issues you wish to discuss.
- All parties should be presentable and professional.
- Be open-minded, courteous and willing to provide all the relevant facts. Being aggressive or stubborn will only make the process lengthier and more difficult to resolve.
- Listen to the opposite party’s issues and how they may be resolved. Perhaps a solution may be found without the need for a litigation process.
- Make sure you commit to the date and time of the hearing.
What do I bring to the hearing?
- Notice of set down given to you by Council.
- A note on the history of the event, detailing the facts of the event.
- It is also important that you know your facts, why you are at the hearing and the outcome that you require.
Who may represent me at the conciliation hearing?An employee may appear in person at any proceedings before a commissioner or be represented by a member; official or office bearer of a registered trade union that the employee was a member of at the time the dispute arose.
A director, trustee or partner in a partnership with that employer may represent an employer. Legal representation is not automatically allowed and may be subject to the commissioner’s discretion.
An attorney or a consultant may not represent you at conciliation.
What types of outcomes are there at conciliation hearings?
- There are only two outcomes: 1. Resolved or 2. Unresolved
- The types of conciliation settlements include: financials, reinstatements, reference settlements or a withdrawal of case.
Should you require any additional information about the Council’s dispute resolution process, please contact your nearest NBCRFLI office.
Conciliation PosterPlease find below a poster about the advantages of the Conciliation process. We encourage you to print this poster and place it in your offices.
