The CCMA rules currently allow for most disputes to be heard by way of conciliation proceedings, con-arb proceedings and arbitration proceedings. Rule 20 does also provide for parties to attempt to resolve a dispute by holding a pre-arbitration conference.
Although the rules do not specifically refer to the term “pre-conciliation”, rule 12 allows for the CCMA to contact parties prior to the commencement of a conciliation hearing, in order to try resolve the dispute. The CCMA has over time made use of rule 12 either by way of contacting the parties telephonically or by holding a meeting with the parties at the CCMA offices.
This process has assisted the CCMA in easing its case load but has also assisted parties in resolving their disputes amicably, without having to physically appear before the CCMA and where parties are required to appear before the CCMA, the time spent there will be minimal.
In light of COVID-19 and the recent CCMA directives issued by the director of the CCMA, the nature of the pre-conciliation process will prove to be a practical measure to adopt whilst the CCMA endeavours to resolve disputes in a practical, safe and responsible manner.
The nature of pre-conciliations
Rule 12 of the CCMA rules provide that the CCMA or a commissioner may contact the parties by way of telephone or by other means, prior to the commencement of the conciliation process, in order to seek to resolve a dispute. From the wording of rule 12 as well as per the general practice adopted by the CCMA, the process is informal where little or no formalities are prescribed.
If one were to compare the conciliation process to a pre-conciliation, the following differences can be noted:
- There are no prescribed time periods to which a pre-conciliation must be held, whereas conciliation hearings do need to adhere to time periods in terms of rule 11 of the CCMA rules;
- Should a party not be available when contacted for a pre-conciliation or should a party not avail themselves for a pre-conciliation meeting, there are no consequences which affect either party, unlike a conciliation process where the absence of a party at a conciliation hearing, may allow the commissioner to continue in the absent parties absence, the commissioner may adjourn the matter for a further conciliation or the commissioner may issue a certificate confirming that the dispute remains unresolved, in terms of rule 13 of the CCMA rules;
- During a con-arb hearing, if the parties are unable to successfully conciliate a matter, it could immediately proceed to arbitration, alternatively, the matter will be set down for an arbitration hearing on another date;
- A similar feature of the pre-conciliation process to that of a conciliation process, is that any discussions and negotiations made between the parties are without prejudice and the proceedings cannot be disclosed, in terms of rule 16 of the CCMA rules.
Pre-conciliations in light of COVID-19
As per paragraph 5 of the Directive issued by the Director of the CCMA on the 08th of May 2020, it is directed that all unnecessary physical contact amongst persons, must be avoided. It is further directed that conciliation disputes are to be resolved where possible, by way of telephone calls or through a digital online platform that is to the satisfaction of the commissioner or the CCMA.
As pre-conciliations are already conducted in a similar manner to that of paragraph 5 of the CCMA directive, it would be reasonable to expect parties to a dispute to accept and opt for the pre-conciliation process for various reasons including the likelihood of a speedy resolution of the dispute and the mitigation of spreading the Covid-19 virus.
In Conclusion
It is evident that the CCMA has adapted to these difficult times, by operating in a safer and practical manner, without detrimentally limiting the right to access the CCMA or any similar dispute resolution forum. The pre-conciliation process is a convenient, accessible and effective process especially where there are decent prospects of the parties reaching settlement. Therefore, employer parties and employee parties should be encouraged to embrace rule 12 in light of Covid-19.
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