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One of the cornerstones of labour dispute resolution is the statutory conciliation process within the CCMA and bargaining councils.
While conciliation mostly occurs within these bodies, a certain degree of private conciliation/ mediation occurs through private agencies, IR consultants and labour attorneys.
Conciliation, as a process, is ordinarily the first step in the endeavour to resolve a labour dispute, and precedes adjudication via the CCMA, Labour Court or a bargaining council should the conciliation process fail to resolve the dispute.
In the UK, the Advisory Conciliation and Arbitration Service (established in 1974) is a body which equates with the CCMA in SA.
Similar statutory dispute resolution institutions of this nature exist in other countries, including Australia.
“Conciliation” may be described as a process where disputing parties are brought together with a view to facilitating a mutually agreeable resolution of the dispute between the parties.
The commissioner has no decision-making powers and merely attempts to facilitate resolution of the dispute.
Interestingly, the LRA does not specify the procedure to be followed during conciliation.
The referral of disputes, particularly unfair dismissal disputes, to the CCMA or a bargaining council is a relatively simple process; so simple, in fact, that the CCMA is inundated with dispute referrals, many of which are speculative and opportunistic, with no prospect of success.
Applicants are often mindful of the fact that certain employers would rather resolve the matter by way of financial settlement than endure the hassle factor associated with a protracted labour dispute.
As much as statutory dispute resolution channels have been designed to expedite dispute resolution, in reality the process remains arduously long at times.
At the time of writing, I am acting on behalf of a client in a part-heard case which involves the dismissal of an employee way back in May 1999.
It is for this reason that many employers will occasionally rather settle a matter rather than be drawn into a lengthy dispute resolution process which often has considerable cost implications.
It would appear that the resolution of disputes at conciliation is achieved in the case of 60 to 70 percent of disputes referred, depending on the institution in question.
This isn’t a bad average, although parties often settle grudgingly with a sense that they have done so under duress.
This perception is counter-balanced by parties who do not settle the dispute at the conciliation stage, and subsequently lose their case when it is adjudicated, after which they may become resentful of the fact that they could have resolved the matter at conciliation stage on more favourable terms.
Dispute resolution is, however, not an exact science.
There is no shortage of hindsight wisdom when one has 20/20 hindsight vision.
Labour legislation and dispute resolution processes are imperfect.
This is all the more apparent when one gives consideration to the inherent conflict of interests which, to a large extent, will always confound employment relationships.
l Register for Tony Healy’s New CCMA Misconduct Arbitration Guidelines workshop on March 2, visit www.tonyhealy.co.za, e-mail email@example.com or phone 0861 115 375