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April 23, 2015

Dispute resolution definitions

There are a number of other dispute resolution procedures that can be used as an alternative to litigation. The most common of these are arbitration and mediation.

Des Williams, the head of the litigation department at Werksmans provided the following definitions.

Arbitration and mediation are fundamentally different processes for resolving a dispute. The object of arbitration is for the arbitrator to resolve the dispute between the parties in accordance with their legal rights.

Mediation, in its wider sense, is a voluntary procedure in which the mediator assists the parties to arrive at an agreed resolution of the dispute, particularly in situations where the parties wish to maintain an ongoing relationship.

The most important feature of arbitration is its consensual basis, which makes it a particularly flexible procedure. The parties can adapt the procedure, taking into consideration the nature of the dispute as well as the amount at stake.

There are a number of organisations which facilitate the running of arbitrations. On a domestic level these include the Arbitration Foundation of Southern Africa and on an international level the London Court of International Arbitration and the International Chamber of Commerce. These organisations are responsible for the administration of arbitrations and are also often responsible for the appointment of the arbitrator.

April 19, 2015

Condonation for delays in referring matters to the CCMA

Time limits:
•Unfair dismissal disputes must be referred to conciliation within 30 days of the date of dismissal;
•An unfair labour practice dispute must be referred within 90 days of the unfair act or omission;
•A request for arbitration must be made within 90 days of the date on which the dispute remained unresolved after conciliation; and
·  An unfair discrimination dispute must be referred within 6 months of the discriminatory act.

If you are even 1 day late, you have to apply to the CCMA for ‘condonation’ on ‘good cause’ shown. You need to file an affidavit that is signed before a Commissioner of Oaths., explaining why you delayed submitting the dispute in time. The commissioner that hears the application for condonation must be satisfied that you have a good reason, otherwise he or she will not accept (condone) a late referral.  

Time frames in the LRA are calculated by using calendar days. This means that all days are counted including Saturdays and Sundays and public holidays. For example, the thirty-day period is counted by excluding the first day and including the last day.

However, in terms of the Interpretation of Statutes Act, if the last day falls on a Sunday or public holiday, this day is not counted. For example, if the last day falls on 16 June – a public holiday – the last day of the 30 days becomes 17 June.

The application must be done in an affidavit in which you must set out:
•The period of the delay;
•The reason for the delay;
•Your prospects (or chances) of succeeding in your claim of unfair dismissal;
•Any prejudice (negative impact) to the other side; and
•Any other relevant factors.

A CCMA commissioner will then decide whether or not “good cause” exists to grant condonation.
Sometimes, it is only at the conciliation stage where the parties or commissioner finds that the dispute was referred late. If this happens, the commissioner may give the parties’ time to prepare argument and thereafter immediately hear both parties before making a decision regarding condonation. Alternatively, the commissioner may direct the employee to submit a written condonation application. This may happen if the referral form states the wrong dismissal date. If this was done deliberately to avoid applying for condonation, it could count against the employee in the condonation process.

Sometimes, it is only discovered at arbitration that the original conciliation application was late. Also, there was no earlier condonation application and ruling that grants condonation. In such cases, the Labour Appeal Court has held that where the CCMA has issued a certificate of non-resolution at conciliation and such certificate not been reviewed and set aside, the CCMA can arbitrate the dispute.

This court decision prevents the raising of technical points to avoid arbitration where a party did not use an earlier opportunity to raise the defect.