GOVERNANCE OF THE LRA CONCILIATION PROCESS
What is conciliation? Conciliation is a process where a conciliator will assist the parties to try to resolve a workplace dispute.
What legislation governs a conciliation? Section 135 of the Labour Relation Act 66 of 1995.
Does Tokiso have Rules that govern LRA disputes? Yes. Tokiso LRA Rules 10 to 16 deals with how to refer a dispute and the proceedings before conciliation.
What gives Tokiso the authority to conduct a conciliation? Tokiso is a CCMA accredited private agency in terms of section 127 of the LRA. In terms of our accreditation, we may conduct conciliation processes. Tokiso requires the consent of the parties to conduct the conciliation, and such consent can be in a contract of employment, collective agreement or an agreement at the time the dispute arises.
How is communication done? All communication must be directed through Tokiso and copied to the other party. Where a party communicates with the panellist through Tokiso about the dispute before that panellist, Tokiso shall copy both/all parties on any response. This maintains the independence and transparency of the process.
REFERRING AN LRA DISPUTE TO CONCILIATION
How do I refer a dispute to Tokiso? You need to complete the form on the Tokiso Website and submit it.
Who refers a dispute to conciliation? It is normally the employee who refers a dispute to Tokiso.
When can an employee refer a dispute? An employee must refer an alleged unfair dismissal dispute within 30 days of the dismissal. An alleged unfair labour practice dispute must be referred within 90 days of the alleged unfair practice.
What if I refer my dispute later than the required timeframes? You need to apply for the late referral to be condoned.
Who appoints the conciliator? Tokiso appoints the conciliator unless parties agree to a conciliator.
Who can act as the conciliator? Tokiso shall only appoint a commissioner accredited by the CCMA. The parties may agree to a conciliator from Tokiso’s broader panel.
Who pays for the conciliation? The employer must pay Tokiso for the conciliation because Tokiso cannot offer a statutory service that is less beneficial to an employee than that offered by the CCMA. Tokiso will in turn pay the conciliator. Electronic payment to Tokiso will be required before the conciliation is confirmed.
THE CONCILIATION LOGISTICS
Is it compulsory to hold a conciliation process for LRA disputes? Yes. It is compulsory to attempt to conciliate a dispute before it is arbitrated, referred to the Labour Court or for the dispute to proceed to industrial action. However, the outcome is voluntary, and the parties decide whether to settle the matter and on what terms.
Where can the conciliation be held? It can be held online, at the employer’s premises, or another venue in the geographical area where the employee works. Tokiso can assist in arranging the online process or a physical venue.
Who determines the date of the conciliation? The parties may agree the date and time of the conciliation. In the absence of agreement, Tokiso shall determine the date and time.
How much notice must be given to the parties? The parties must be given at least 14 days’ notice of the conciliation. The conciliation must take place within 30 days from the date of referral and the parties can agree to extend the 30-day period. Tokiso will schedule the matter within two days from receiving the notice and payment for the conciliation.
THE CONCILIATION PROCESS
Is the conciliation process private and confidential? Yes. Nothing that the parties say in the conciliation process may be used against them in another process unless by agreement or by order of a court. The nature of the dispute is not confidential as it may be captured on the outcome certificate that is issued if the dispute is not settled. A settlement agreement normally specifies that the terms of the settlement are confidential.
Who can represent a party? For the employee, a co-employee or a union official or office bearer. For the employer, a director or employee or an employer organisation official or officer bearer. Legal representation is not allowed in a conciliation.
What process will the conciliator follow? Normally, the conciliator will start the conciliation by meeting both parties jointly and ask them to share information about the dispute. Parties may bring documents that may assist in explaining their case. The conciliator may meet with the parties separately to explore possible ways of resolving the dispute and to point out strengths and weaknesses in their case. Should the parties come to an agreement, the conciliator will assist the parties to draft the settlement agreement.
What decisions can the conciliator make? The conciliator may be required to determine whether the dispute was referred late, whether Tokiso has jurisdiction to hear the dispute and/or whether the referral was made in accordance with the Tokiso LRA Rules. The conciliator will not make any findings on the merits of the dispute.
What if a party or both parties do not attend the conciliation? The conciliator may contact the parties to attempt to settle the dispute telephonically. If the dispute remains unresolved, the conciliator will issue a certificate of outcome which will record that the dispute is not settled and also record that the dispute did not settle because of the failure of that party to attend the conciliation proceedings.
THE OUTCOME AT CONCILIATION
What happens if the parties settle at or before conciliation? The parties can settle the dispute and sign or record online a settlement agreement. This will conclude the dispute and case will be closed.
What if the dispute is not settled? The conciliator will issue a certificate of outcome which will record that the dispute is not settled, the nature of the dispute, and why the dispute was not settled. The certificate will also record where the dispute can be referred to be resolved: arbitration, the Labour Court or parties may engage in industrial action. If the dispute can be referred to arbitration, the employee may complete the section on the certificate to refer the dispute to arbitration. This will immediately trigger Tokiso to schedule the dispute for arbitration and a separate arbitration referral form will not be required.
What if the conciliation does not take place within the required 30-days? The parties can either extend the 30-day period or request Tokiso to issue a certificate of outcome.
What is con-arb? The con-arb process is where the arbitration hearing immediately follows the conciliation on the same day.
Is the same commissioner used for the conciliation and arbitration in the con-arb process? Yes, but not always. Tokiso may direct that the arbitration be conducted by a different commissioner.
What if you do not want a con-arb conducted? If Tokiso has scheduled the dispute for con-arb, a party may object to the con-arb being conducted. If there is an objection, Tokiso must hold a separate conciliation and arbitration hearing, unless it is a dismissal for any reason relating to probation or any unfair labour practice relating to probation.
Are there any disputes that must be heard by con-arb? Yes. This includes dismissal for any reason relating to probation, any unfair labour practice relating to probation, or where Tokiso has scheduled a dismissal or unfair labour practice dispute for con-arb and no party has objected thereto.
Are there any disputes that may not be heard as con-arb? Yes, including the following cases that fall in Tokiso’s jurisdiction: interpretation and application of collective agreements, non-renewal of fixed term contract or renewal on less favourable terms, dismissals based on operational requirements, and entitlement to severance pay.
WE CAN HELP
You are welcome to contact Tokiso for advice and guidance on the process at 011 853 6300 or firstname.lastname@example.org. Tokiso will not give advice on the substantive issues of a case due to our independence.