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Con-arb process plagues HR practitioners

Ivan Israelstam

Because of the need to speed up the resolution of labour disputes, the Labour Relations Act (LRA) provides for a 'short-cut' process called 'con-arb', which stands for 'conciliation-arbitration'. 'Conciliation' is the process in which the CCMA or bargaining council (BC) mediator tries to assist the employer and employee to reach an out-of-court agreement. It's a peace-making exercise that's intended to end in a settlement agreement and not in a judgement award.

'Arbitration', on the other hand, is a judicial-type process that usually occurs if a conciliated settlement isn't achieved. At arbitration, the employer and employee don't negotiate an agreement. Instead, they bring and present evidence as they would in a court case. Then the arbitrator, after hearing all the evidence, makes a finding which makes a ruling on which party was in the wrong.

Normally, if the conciliation meeting fails to produce a settlement and the employee applies for arbitration, the arbitration hearing will be scheduled for several weeks or months later. Con-arb is when, instead of scheduling the arbitration for a later date, it's held on the same day - the minute that conciliation fails. It means that the parties have no time after the conciliation meeting to prepare their evidence and arguments for the arbitration.

The process of con-arb is not compulsory for all types of dispute. It is compulsory when the dispute concerns:

  • The dismissal of an employee for any reason relating to probation, or
  • Any unfair labour practice relating to probation.

In addition, if neither party objects to con-arb then con-arb will take place even if probation isn't involved, provided that the dispute concerns:

  • A non-strike-related dismissal for conduct or capacity,
  • Constructive dismissal,
  • The employer's failure to preserve employees' employment conditions substantially when transferring them in terms of section 197 of the LRA,
  • An employee who doesn't know the reason for the dismissal, or
  • An unfair labour practice.

On receiving a con-arb notice, an HR professional who doesn't want to go through con-arb must lodge a formal objection at least seven days in advance of the set hearing date. However, such an objection won't be valid if the dispute is about unfair dismissal or unfair labour practice relating to probation.

Con-arb may also have the effect of forcing parties to make every effort to settle the matter at conciliation. This is because they're aware that the arbitration will take place immediately after conciliation fails. The 'pressure' to settle will only have an effect on employers or employees who believe they may lose the case. That is, if HR practitioners know their cases are weak, they'll be under pressure to settle at conciliation. This could cost the employer a lot of money.

It is therefore essential for those who receive con-arb notices to:

  • Understand what con-arb means for them in practice, and
  • Begin immediately with preparations for the con-arb.

This is particularly so because the parties seldom get more than 14 days advance notice of a con-arb.

The parties need to begin intensive preparations the moment they receive a con-arb notice because:

  • 14 days is very little for purposes of preparation,
  • The parties have to prepare for both conciliation and for arbitration, and
  • Preparation for arbitration in particular takes a great deal of time.

Included in these preparations should be:

  • The preparation of the witnesses of truthful, relevant and accurate testimonies,
  • Collection, and preparation of, documentary and other evidence,
  • Responses to anticipated evidence that the opposing party could bring, and
  • Preparation of case arguments and case law.