Conciliation is a process where a conciliator will assist the parties to try to resolve a workplace dispute.
Conciliation is a process where a conciliator will assist the parties to try to resolve a workplace dispute.
Section 135 of the Labour Relation Act 66 of 1995.
No, will need to be developed
Toka & Ass is a CCMA accredited private agency in terms of section 127 of the LRA. In terms of its accreditation, it may conduct conciliation processes. Toka & Ass 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.
All communication must be directed through Toka & Ass and copied to the other party. Where a party communicates with the panellist through Toka & Ass about the dispute before that panellist, Toka & Ass shall copy both/all parties on any response. This maintains the independence and transparency of the process.
The referring party needs to complete the form on the Toka & Ass Website (to be developed) and submit it.
It is normally the employee who refers a dispute to Toka & Ass.
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.
The referring party will need to apply for the late referral to be condoned.
Toka & Ass appoints the conciliator unless parties agree to a conciliator, from its list of panellists.
Toka & Ass shall only appoint a commissioner accredited by the CCMA. The parties may agree to a conciliator from Toka & Ass’s broader panel.
The employer must pay Toka & Ass for the conciliation because Toka & Ass cannot offer a statutory service that is less beneficial to an employee than that offered by the CCMA. Toka & Ass will in turn pay the conciliator. Electronic payment to Toka & Ass will be required before the conciliation is confirmed.
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.
It can be held online, at the employer’s premises, or another venue in the geographical area where the employee works. Toka & Ass may assist in arranging the online process or a physical venue.
The parties may agree the date and time of the conciliation. In the absence of agreement, Toka & Ass shall determine the date and time of the concilliation.
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. Toka & Ass will schedule the matter within two days from receiving the notice and payment for the conciliation
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.
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.
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.
The conciliator may be required to determine whether the dispute was referred late, whether Toka & Ass has jurisdiction to hear the dispute and/or whether the referral was made in accordance with the Toka & Ass LRA Rules (to be developed). The conciliator will not make any findings on the merits of the dispute.
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 parties can settle the dispute and sign or record online a settlement agreement. This will conclude the dispute and case will be closed.
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 Toka & Ass to schedule the dispute for arbitration and a separate arbitration referral form will not be required.
The parties can either extend the 30-day period or request Toka & Ass to issue a certificate of the outcome.
The con-arb process is where the arbitration hearing immediately follows the conciliation on the same day.
Yes, but not always. Toka & Ass may direct that the arbitration be conducted by a different commissioner.
If Toka & Ass has scheduled the dispute for con-arb, a party may object to the con-arb being conducted. If there is an objection, Toka & Ass 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.
Yes. This includes dismissal for any reason relating to probation, any unfair labour practice relating to probation, or where Toka & Ass has scheduled a dismissal or unfair labour practice dispute for conarb and no party has objected thereto.
Yes, including the following cases that fall in Toka & Ass’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.