How to refer a dispute to CDR?
In normal cases, the employee or ex-employee refers the dispute to the CDR by completing the referral form (LRA Form 7.11). This form is available from any MEIBC offices and can also be obtained by telephoning the CDR to email or fax a form. Please note that if the case referred is an alleged unfair dismissal in terms of section 191(1) of the LRA, the dispute must be referred to the CDR within 30 days of the date of a dismissal. The form is in English and needs to be completed in English. The forms are easy to fill out, but if help is required to complete the form, the nearest CDR (MEIBC) office can help, either at their office or by telephone. After completing the referral form, a copy should be sent to the other party. The applicant must make sure that there is proof that the other party has received a copy, such as a signature of receipt, a fax receipt slip or a registered letter slip.
How can a party prove that a document was served?
The form and the proof of service with the employer must be sent to the nearest CDR (MEIBC) office by hand delivery, by fax or by registered mail. If it is sent by normal post, the CDR cannot take responsibility if it gets lost during the process. If an applicant is not represented by a union and does not have a fax or postal address, the applicant MUST deliver the form to the CDR by hand. The CDR will give you a case number and the applicant will be asked to telephone the CDR for the date and details of the conciliation hearing. This referral form is the only document that needs to be completed. This referral form will ensure that the case goes to conciliation if the CDR has the jurisdiction to hear the case. If the case is not settled and a separate arbitration is required, the case will immediately be referred to arbitration if the CDR has the jurisdiction to arbitrate the case.
The conciliation certificate, which is issued at the end of the conciliation, will reflect where exactly the dispute will go next. If the applicant referred the dispute and the dispute is not settled in conciliation, and the applicant has decided not to take the matter further, please advise the CDR as soon as possible. The case will be closed at the applicant's request.
Once the CDR has received the referral form, it will check whether all the information needed has been provided. From the screening phase, the cases can have the following status:
- Clean case: all the information needed is available and the case can be scheduled for conciliation.
- The case is out of jurisdiction – a letter will be sent to all the parties advising them that the CDR does not have jurisdiction to deal with the matter and parties will be advised where the matter should go.
- Jurisdiction unclear – if the CDR is unclear about the jurisdiction, the case will be scheduled. The responsibility will be on the responding party (the employer) to argue that the dispute is out of the CDR's jurisdiction at the conciliation hearing. The employer party can also submit documents supporting their claim prior to the hearing.
- Defective referral – not all the information needed has been included on the referral form or the form has not been served on the other party. A letter will be sent to the referring party (and, if necessary, copied to the other party) to ask the party to supply the necessary information. Please note that you will be given a time period to submit this information, and if we do not hear from you, the case will be closed.
- Condonation required – If your case is out of time, you need to apply for condonation, i.e. you must apply for your case to be heard out of time. The application form for condonation is attached to the referral form and guides you through the information needed in the application. If you did not fill out the application form and condonation is needed, you will be sent an application to complete.
Please note that under the LRA, the CDR cannot accept a referral that is defective until all the essential information has been provided, and a copy of the referral has been sent to the other party. Only once all the necessary information has been provided, the CDR can process your referral.
Notices to the Parties and Correspondence
All parties will be sent a written notice for all processes. The parties can agree that less notice period be given if the case is urgent. All correspondence to you will show a "case number". It is important that the applicant keeps a record of the case number and keeps all correspondence that has been sent. The applicant needs to quote the case number to the CDR CMO or MEIBC commissioner in all communications. The applicant will be notified of a hearing date by registered post, fax or by email.
An applicant who does not have a postal address, fax or email will be notified by telephone and this will be recorded in the file as proof of notifications. The CDR keeps record of all correspondence that it has sent to parties. The MEIBC commissioner will always check these records to ensure that correspondence was sent before proceeding with a hearing. The applicant needs to serve all documents that are sent to the CDR on the other party(ies) to the dispute. This can be done by hand delivery, fax, by registered post or telegram.
The Conciliation Process
Conciliation is where a MEIBC conciliator helps disputing parties come to an agreement on how to settle the matter. The agreement is always by consent. At the CDR, the dispute will always be between an employee or union, and an employer or employer's organisation. The applicant DOES NOT have to settle; the applicant only has to agree to something he is happy with. If it is clear that no agreement can be reached, the MEIBC conciliator will try to "narrow" the issues. This means that an attempt will be made to get agreement on which facts are common cause and which facts are in dispute. This will help the parties understand the dispute better.
Non-attendance by either party to the rights dispute will result in the issuance of the certificate of non-resolution and the applicant party will have to apply for arbitration. Non-attendance in the dispute of mutual interest will result in the extension of the conciliation period by 30 days. Once the conciliation phase is complete, the MEIBC commissioner will issue a conciliation certificate, which will reflect: -
- The case number
- The parties to the dispute
- The type of dispute
- The outcome and, if unsettled, which issues remain unsettled
- If unsettled, when the dispute can go next to be resolved, ie to arbitration at the CDR and
- The name and signature of the MEIBC commissioner.
The certificate of non-resolution issued by the commissioner is an important document, as it reflects the legal status of the dispute. If the applicant does not want the case to go further, this can either be indicated in the hearing or to the CDR after the hearing that the case should be withdrawn. In this regard the employer will be expected to complete a notice of withdrawal. If a settlement agreement is reached in the conciliation, the MEIBC commissioner will draw up a settlement agreement for all the parties to sign. A copy of the signed agreement is given to each party at the conciliation. The original copy is kept by the CDR for its file and archives.
The Arbitration Process
It should be noted that the MEIBC commissioner will guide the parties through the process and on the evidence needed. The parties are not expected to go into arbitration without having a detailed understanding of the technicalities of the process. The proceedings of the arbitration will be recorded. The recordings of all proceedings are be kept by the CDR. Either party can request the CDR to subpoena a witness or documents.
A form and a motivation need to be submitted as to why the subpoena is necessary. It should be noted that a witness fee is payable, unless the CDR rules that such a fee be waived. If the applicant party fail to attend the proceedings, the matter will be dismissed and if the respondent party fail to attend the proceedings, the matter will continue in default and after the commissioner has satisfied him/herself that the employer or respondent has been properly notified of the hearing and will issue a default award which is final and binding unless set aside by the Labour Court.
How to postpone arbitration?
Arbitration can be postponed provided that consensus is obtained with the other party in writing and such an agreement is submitted to the Council at least seven (7) days before the scheduled arbitration date. MEIBC commissioners will not postpone the case unless there is consent from both parties and a compelling reason is advanced in writing and served to the other party. Option of Settlement: The MEIBC commissioner will always leave open the option that the parties settle the dispute by agreement. The philosophy of dispute resolution always gives preference to an agreement over an arbitrated award. The arbitration award will be in writing and sent to the parties within fourteen (14) days after the arbitration hearing or the submission of closing arguments.
The Con-Arb Process
The con-arb process is a conciliation and arbitration brought together by eliminating the time between them. The Council must notify the parties in writing of a con-arb hearing fourteen (14) days prior the scheduled date, unless the parties agree to a shorter period. The conciliation will be held and, if no settlement is reached, the parties will immediately go into the arbitration process. It should be noted that the MEIBC commissioner conciliating the matter is not necessarily the same person as the MEIBC commissioner arbitrating the matter. This process will cut down the amount of time that the parties spend in resolving the dispute. It will be used for disputes where the con-arb process is appropriate. Parties may object to the con-arb process being used at least seven (7) days before the scheduled date but not probation disputes and a dispute relating to a compliance order referred in terms of the BCEA.
How to request an Inquiry in terms of section 188A of the LRA?
An employer requesting the Council to conduct an inquiry, must do so by delivering a completed LRA Form 7,19 to the Council. The employee must sign the form unless the employee has agreed to the inquiry in a contract of employment or the inquiry is held in accordance with a collective agreement. The pre-dismissal arbitration was introduced by the 2002 amendments to the Labour Relations Act. This process combines the disciplinary enquiry and arbitration process and cuts out all other processes.
Distinct features of the pre-dismissal arbitration: -
- The process is by consent and the application is completed by the employer party.
- The consent could also be in the contract of employment where the employee earns above the threshold that is determined by the Minister. The current threshold is R205 443.30 per annum
- The company must pay the arbitration fee to the Council's account before the hearing can be conducted.
- The arbitration fee is currently R6000.00 (Excl. VAT) per day.
- The CDR will appoint the arbitrator to hear the dispute.
- The hearing can be heard at the company's premises or at the CDR offices.
- The outcome of the pre-dismissal arbitration is an award that is final and binding to the parties.
- If either party is not satisfied with the award, they CANNOT refer a dispute to the CDR, but they can review the award at the Labour Court through section 145 of the LRA.