Effectiveness of conciliation as an alternative dispute resolution process in unfair dismissal disputes

Abstract

In its preamble, the LRA provides that one of its aims is to change the law governing labour relations by, amongst other means, promoting simple procedures for the resolution of labour disputes. The Commission for Conciliation, Mediation and Arbitration (hereafter referred to as the CCMA) was created during 1996.1 It was expected that the CCMA would have to deal with an average of 30 000 referrals nationally per year. However, it quickly became apparent that this was a gross underestimation. During the 1997/1998 reporting period, the CCMA reported that it had received 67 319 referrals. The number of referrals has continued to increase yearly, with 154 279 referrals having been received during the 2010/2011 reporting period. This trend has continued, with the CCMA for the reporting period of 2015/2016 reporting 179 528 referrals.2 The process of the referral of a dispute to the CCMA or any other dispute resolution council was engineered to be uncomplicated and cost efficient for the CCMA to be accessible to everyone, and to give effect to Section 23 of the Constitution.3 The CCMA strives for any person who has a labour dispute to be able to refer the matter to the CCMA, without requiring costly legal representation. However noble the intention for free and easy access to the CCMA may be, the limited consequences associated with dishonesty or abuse in the forum has resulted in cases of misuse by employees and reluctance by the employer to participate in pre-arbitration processes.4 In order to give effect to the constitutional ideologies through the concialtion and making the referral process of dismissal law available to dismissed employees free of charge5, the CCMA has provided a forum for employees to ventilate disputes with their employers on an equal footing. To reach a mutually acceptable agreement between the parties. However honourable the intentions of the CCMA may be in providing and facilitating the process of conciliation in disputes of alleged unfair dismissal, it is not immune to being abused by parties who may not have the best of intentions when referring a dispute to the CCMA in the first place. This study aims to identify the possible short comings of the concialtion process at the CCMA by comparing it to a similar process used in the United Kingdom provide proposed recommendations for conciliation in disputes based on allegations of unfair dismissal, remain effective in South Africa.