Section 191(5A) of the Labour Relations Act, the LRA, makes provision for a Con-arb process, which is a speedier one-stop process which allows for combination of a conciliation and arbitration in one process, to be held immediately after each other, should conciliation fail, in unfair labour practices and unfair dismissal disputes involving individuals. In effect, this process will allow for conciliation and arbitration to take place as a continuous process on the same day. The process is compulsory in matters relating to-
- dismissals for any reason relating to probation;
- any unfair labour practice relating to probation;
- a dispute relating to a compliance order referred to in terms of section 69(5) of the BCEA; and
- a claim for failure to pay any amount owing referred to in terms of section 73A of the BCEA.
If no objection is received from the parties, this process may be used for other disputes (dismissals for misconduct, incapacity, where the employee resigned because the employer’s conduct made continued employment intolerable or due to less favourable terms after a s197 or s197A transfer, and for dismissals where the reason for dismissal is unknown; or an unfair labour practice other than if the unfair labour practice deals with an act or omission linked to the Protected Disclosure Act).
This process may not be used for dismissals relating to unprotected strikes. These disputes must be referred to the Labour Court if no agreement is reached to settle the dispute at conciliation.
The CCMA must give both parties at least 14 days' notice of the con-arb hearing date together with guideline information on how to prepare for the hearing. If a party fails to appear or to be represented, the conciliation will continue on the scheduled date and a certificate of outcome will be issued and arbitration may commence immediately thereafter. In certain instances, the arbitration may be adjourned and then scheduled for a different date either in the presence of both parties at the conciliation or by the CCMA giving 21 days' notice to both parties.
Objections to the con-arb process
An objection by an employer party is effected by delivering a written notice of objection to con-arb to the CCMA and the opposing party, at least seven days before the scheduled con-arb date. An employee may object by indicating such on the LRA form 7.11.
No objection is allowed for disputes relating to probation, or those relating to section 69(5) and 73A of the BCEA.
A commissioner does not have a discretion to overturn a party’s objection to a con-arb process which has been properly filed. However, should both parties agree to proceed with the arbitration after conciliation, after there was an objection filed, a commissioner may consider that request and proceed with the arbitration if it is practical to do so.
The effect of an objection is that it cancels the arbitration process commencing immediately after the conciliation. Should the dispute not be resolved by conciliation, the applicant party will be required to apply for arbitration if they still want to pursue that dispute. An application for arbitration is not required if the matter was scheduled for con-arb, but the arbitration part was adjourned by the commissioner