Employee Relations – Dispute Resolutions
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The Dispute Resolutions Blueprint will discuss the general dispute resolution process as well as how interactions with the system should be performed in order to manage all dispute cases. The areas that will be covered are as follows:
- Internal Dispute Resolutions
- Statutory Dispute Resolution Forums
- External Dispute Resolutions
- Awards & Settlements
- System Interactions
The person that is accountable for this specific process.
All parties that have a vested interest in this process.
Requirements that need to be recorded during this process. What, How, Where.
Requirements that need to be reported on during this process. What, How, When, Where.
Requirements that need to be stored during this process. What, How, When, Where.
Requirements that need to be met in to comply with Auditing Regulations. What, How, When, Where & Type of Audit Requirement.
Any Notifications that need to be Generated and/ or Actioned During this Process.
Any Reminders that need to be Generated and/ or Actioned During this Process.
Transparency & Communication
Knowledge & Skills
Any Transparency, Communication & Distribution Requirements needed for this Process.
Any Knowledge & Skills required to successfully complete this process.
Links and Process within a system that directly relates to this Process.
Are there any Workflows that drive this Process? This can be Manual or NFE Workflows.
Legislation & Governance
Templates, Forms, Guides and Work Instructions
S.A. Board for People Practices
Any Legislation, Bodies, Processes, Policies that Govern this Process.
Links to Templates, Forms Guides and Work Instructions that are either to be used for application or as Guidelines to meet minimum requirements for this Process
Does this Process Align with SABPP. This can either be Fully, Partially or Not at All.
Inputs are all of the Elements deemed necessary to complete the process successfully.
- Raised Dispute
Tasks are the Step-by-Step Actions to be taken to complete the Process.
- Signed Settlement Agreement – Internal Dispute Resolutions
- Completed and submitted Dispute Referral Forms
- Served Dispute Referral Forms
- Signed Settlement Agreement – Conciliations
- Certificate of Non-Resolution – Conciliations
- LRA 7.13 – Request for Arbitration
- Arbitration Recordings
- LRA 7.16 – Subpoena
- LRA 7.18 – Application to Certify Council Award
- Arbitration Settlement Awards
Internal Dispute Resolutions
The Labour Relations Act of 1995 (LRA) provides the platform to employees to challenge any alleged unfair dismissals and other unfair practices.
It is imperative for organisations to exhaust all avenues of available Disciplinary Codes, Procedures & Policies in an attempt to resolve disputes internally. It is common practice for employees to interact or to be represented by Unions during this phase.
If an agreement can be reached between employer, employee & union during this phase, it is imperative that the agreed terms be put in writing with sign-off from all parties.
If no agreement can be reached at this stage, it would result in the dispute case to be escalated to a more formal, external and most likely, very costly level.
Statutory Dispute Resolution Forums
The Labour Relations Act establishes the following formal dispute resolution forums:
- The dispute resolution arms of Bargaining Councils.
- The Commission for Conciliation, Mediation and Arbitration (CCMA).
- The Labour Court
- The Labour Appeal Court.
- External Dispute Resolutions
The aggrieved employee must start off by completing a dispute referral form and submitting it to the CCMA or relevant Bargaining Council. If the CCMA is not satisfied that this has been done, it cannot consider the dispute.
The employee should also ensure that Referral Forms are properly served to the opposing party. The following are the only accepted mediums for serving Referral Forms:
- Handing a copy to the other party (the person concerned, an authorised representative of that person or a person who appears to be at least 16 years old. There are specific provisions for service by hand on a company or other body corporate, an employer, a trade union, a partnership a municipality, a statutory body or on the State or a province).
If none of the identified persons are willing to accept service, service may be affected by affixing a copy of the document to the main door of the premises concerned or, if this is not accessible, a post box or other place to which the public has access:
- Registered Post
It is important that once documents have been served, that the referring party attaches proof that the documents have been served. This can be done by attaching:
- a copy of the sent e-mail indicating the successful dispatch to the other party of the e-mail and the attachments concerned;
- Attaching proof of a fax transmission
- Registered post slip or a copy of the telegram
- If the documents were hand-delivered to the other party, a copy of a receipt showing the date, time, place and signature of the person to whom the document was handed or a statement confirming service signed by the person who delivered a copy of the document to the other party or left it at any premises.
If proof of service as described above is provided, the CCMA will presume, until the contrary is proved, that the documents were served and received by the opposing party.
Once the documents have been successfully served, the referring party must then file the documents (with proof of service) with the CCMA.
Documents may only be filed at the addresses, telefax numbers and email addresses listed in Schedule One of the CCMA rules (contained in Government Gazette 38572 of 17 March 2015). Documents may be filed by:
- Hand delivering the documents
- E-mailing the documents
- Sending a copy of the documents by registered post
- Faxing the documents
Conciliation is an informal process and the main aim is to bring the parties together in an attempt to amicably resolve the alleged dispute. Attorneys are not permitted to represent their clients at the conciliation stage.
The CCMA must give the parties at least 14 days notice, in writing, of a conciliation hearing. The 14 days run from the date the notification is sent by the CCMA. An additional seven days are allowed if the notice is sent by registered post.
CCMA rules state that conciliation proceedings are private and confidential, and they are conducted on a “without prejudice” basis. Prior to the 2015 amendments, no person could refer to anything said at conciliation during any subsequent proceedings, unless the parties agreed thereto in writing. This is now subject to the power of a court to order disclosure.
A conciliation meeting is set up where a mediator is appointed to attempt to facilitate an out-of-court settlement. There are several possible outcomes of a conciliation hearing. If the parties have managed to amicably settle the dispute, the conciliating commissioner will assist in drafting the settlement agreement. In such a case, once the agreement is signed, the matter will be resolved.
If the parties cannot resolve the matter, the conciliating commissioner will then issue a certificate of non-resolution (stating that the matter remains unresolved). Once in possession of this certificate, the applicant may refer the matter for arbitration. In cases where the dispute relates to matters such as multiple retrenchments, strike dismissals or automatically unfair dismissals, the matter will go to the Labour Court instead. The arbitration or Labour Court hearing would normally take place at a later date.
Employers must be aware that there are two instances in which conciliating commissioners will issue a certificate stating whether or not the dispute has been resolved. The first is when conciliation has failed, the second is when 30 days have expired after the referral.
If, after conciliation, a dispute remains unresolved, the applicant may refer the matter for arbitration by completing the LRA7.13 form. The certificate of non-resolution must be attached to the LRA7.13 form. Once the LRA7.13 form has been served and filed, the CCMA will allocate a date for arbitration. The CCMA must give the parties at least 21 days notice, in writing, of an arbitration hearing, unless the parties have agreed to a shorter period. Again, the 21 days run from the date the notification was sent except in the case of notification by registered post in which case an additional seven days are added.
The arbitration proceedings are on record and do not remain confidential. During the arbitration hearing, both parties are given an opportunity to state their case, call witnesses and lead evidence. At the conclusion of arbitration, the arbitrating commissioner is obliged, within 14 days, to issue an arbitration award.
Preparing for arbitration proceedings:
Although the procedures adopted by the CCMA are intended to be informal, arbitration proceedings are far more formal than conciliation proceedings. It is therefore important that the parties to a dispute are sufficiently prepared for arbitration. When preparing for arbitration proceedings, parties to a dispute should:
- Assess whether the CCMA does in fact have jurisdiction to arbitrate the dispute. If it does not, the party alleging that the CCMA does not have jurisdiction must prepare to raise a jurisdictional point at the commencement of the arbitration proceedings.
- Assess, whether a party to the arbitration process, objects to the same commissioner presiding, as in the conciliation process.
- Identify who will testify during the arbitration proceedings. Parties should avoid calling witnesses who will add no value to the arbitration. For example, in unfair dismissal cases, if the employee has indicated that he will not challenge the procedural fairness of his dismissal, then it may be unnecessary to call the chairperson to testify;
- Arrange to meet with the witnesses and confirm that they are, in the absence of a subpoena, willing to testify at the arbitration. Ensure that the witnesses are appraised of the nature of the proceedings and the fact that they will be required to testify under oath (or affirmation).
- Identify all of the documents that will be relied on during the arbitration.
- Prepare a bundle of documents in chronological order and ensure that the documents are indexed and paginated for ease of referring to page numbers during the arbitration.
- Make 4 copies of the bundle of documents (one for the opposing party, one for the employee, one for the witnesses and one for the commissioner).
- Prepare an opening statement. An opening statement should not address all of the facts of the case, it should rather constitute a summary of what the party intends to prove during the arbitration proceedings.
- Prepare a closing argument that confirms the issues in dispute, an analysis of the evidence given, identify whether there is any case law relevant to the facts and how the law applies and why the opposing party’s case should be dismissed.
Aspects of evidence:
- The LRA entitles a party to a dispute during arbitration proceedings to:
- Call witnesses
- Give evidence
- Question the witnesses of any party
- Present closing argument
Parties to a dispute should only lead relevant evidence during the arbitration proceedings. If irrelevant evidence is presented, it will unnecessarily complicate the process and burden the commissioner with information that ought not to be considered. When a witness presents oral evidence, the witness will be asked to testify under oath (or affirm to tell the truth). Commissioners are entitled to ask witnesses questions during the arbitration proceedings. A witness is not permitted to give evidence by reading a prepared statement unless the parties to the dispute have agreed to this.
It is important that parties to a dispute understand that it is not the dispute resolution body’s responsibility to ensure that witnesses arrive for arbitration proceedings. Parties to a dispute may however approach the dispute resolution body for assistance in this regard by completing an LRA 7.16 form. The purpose of which is to request that the dispute resolution body issue a subpoena. It is usually only necessary to have a subpoena issued if the individual is not willing to testify or of the individual needs to take time off from work in order to testify and as a consequence, a subpoena would assist in asking the employer for leave to do so. Once a subpoena is issued by the dispute resolution body, it must be served on the person who is required to testify and/or bring certain documents to the arbitration. A subpoena may not be ignored and must be complied with.
In certain circumstances, subject to the nature of the dispute, it may be necessary for a party to a dispute to call an expert witness to testify. Expert evidence is admissible and in so far as it is relevant to the dispute, must be considered by the commissioner. The CCMA rules that a party intending to call expert witnesses must give all parties seven days’ notice together with a summary of the proposed evidence, any document on which that witness will rely and the basis on which the witness is regarded as an expert in order to avoid postponements.
In general, hearsay evidence is inadmissible because it constitutes evidence about what another person saw, heard or experienced. Hearsay evidence is only permissible if the other party admits the evidence.
The Constitutional Court has noted that commissioners must deal with the substantial merits of a dispute at arbitration with the minimum of legal formalities. This means that commissioners must deal with the substance of a dispute between the parties and cut through all the claims and counter-claims.
The CCMA Rules make provision for a party to a dispute to make an application during any dispute. The applications that are commonly considered by the CCMA are:
- Condonation Applications
- Joinder applications
- Substitution applications
- Variation of Rescission Applications
- Applications concerning a Jurisdictional point
Applications for postponements must also comply with the rules. Subject to the nature of the application, the application may be considered on affidavit alone and there will be no need for the parties to present oral evidence. A party that makes an application must ensure that the application contains the following:
- Notice of application
- Founding affidavit
- Documents attached to the affidavit that may be necessary or relevant
- Proof that the application papers have been served and filed on the opposing party
The party making application, must also inform all interested parties, in the notice of application, that he or she has 14 days within which to oppose the application. If there is intent to oppose the application, the following documents must be served and filed within five days.
- Notice of opposition
- An opposing affidavit
- Proof that the opposing papers were served on the applicant.
If the applicant wishes to deliver a reply, the time limit for doing so is 3 days. The CCMA will then determine whether the application may be considered on the papers alone or whether it is necessary to set the matter down for hearing in order to determine whether the application should be granted or not. Despite the laid down procedures and time limits, the rule provides that a commissioner may determine an application in any manner he or she deems fit. All parties must be informed how the process will be conducted and be given an opportunity to be heard.
If a party to a dispute does not arrive for conciliation or arbitration proceedings, the CCMA Rules that the conciliation will continue on the scheduled date.
If a party to a dispute fails to attend scheduled arbitration proceedings, the arbitration will proceed in the absence of that party (provided that the Commissioner can confirm that the absent party did in fact receive proper notification of the proceedings). A material consequence of not attending a scheduled arbitration is that the commissioner will only have an opportunity to listen to one version of events.
In other words, the commissioner will not be presented with both parties’ versions and can only determine the matter on one version.
Upon the conclusion of an arbitration, a commissioner will issue an arbitration award without any input from the absent party. Although a party’s absence during arbitration proceedings does not automatically mean that the commissioner will find in favour of the party who has attended, the likelihood thereof is high.
- Awards & Settlements
Upon the conclusion of an arbitration hearing, the commissioner is obliged, within 14 calendar days, to issue a written arbitration award. The award must be issued in English, as well as signed by the commissioner.
An arbitration award issued by a commissioner is final and binding and, once it is certified by the Director of the CCMA, may be enforced as if it is an order of the Labour Court in respect of which a writ has been issued unless it is an advisory award.
It will only become necessary for a party to certify an award if a party to the award does not comply with its obligations set out in the award. In order to have an award certified, the party seeking to certify the award must complete an LRA 7.18 form and record the following information:
- The identity of the parties
- Details of the award
- Attach a copy of the award
- Proof that the award has been served on the opposing party
- The extent of the opposing party’s failure to comply with the award
Before an application to certify an award is filed with the CCMA, there must be proof that the application was served on the opposing party and that the opposing party was informed that he may make written representations, within 14 days as to why the award should not be certified.
Suspension of arbitration awards during the review procedure:
Application to review an arbitration award issued on or after 1 January 2015, does not suspend the operation of an arbitration award unless the applicant furnishes security equivalent to 24 months remuneration where the award orders re-employment or reinstatement or 12 months’ remuneration if the award orders monetary compensation.
In cases such as the above, the employee/ employer may institute contempt proceedings in the Labour Court.
The System provides a comprehensive Dispute Resolution Case Management Module. This ensures the all Line Managers/ HR Departments are provided with a platform to successfully log & manage all cases.
It is compulsory for all cases to be logged on the system as this has a direct impact on:
- Group Reporting
- Risk Analysis & Forecasting
- Cost Analysis, Forecasting & Budgeting
Below is a summary of some of the features available in the system:
· Business Unit
· Document Upload Facility
· Case logged by
· Date Case logged
· Risk Value/Quantum
· Date Dispute Arose
· Legal Representatives
· Type of Case
· Current Process
· Nature and a short description of case/dispute
· Current Status
· Updating of Status
· Names and Surnames of parties involved
· Scheduled hearing/court session or sessions
· Case Number
· Final Outcomes
· Potential Risk
· Settlement/ Award Details
END OF PROCESS