Shortly after the dawn of our democracy, our labour law regime was completely overhauled with the enactment of the Labour Relations Act 66 of 1995 (LRA). The vision for this legislation was to provide simple procedures for the resolution of labour disputes. This was not simply for expediency; it was in the context of empowering those only recently franchised to have better access to justice. The concept was revolutionary in our formalistic legal system: there would be an emphasis on dispute resolution mechanisms such as conciliation, there would be no automatic right to legal representation and arbitrators could adopt an inquisitorial approach in that they are empowered to embark on fact finding missions.

Litigating in the CCMA, especially as an employer, is usually anything but a straightforward process that parties can easily navigate without the assistance of lawyers. The recent Constitutional Court judgment of September & Others v CMI Business Enterprise CC [2018] confirmed that not everything discussed during conciliation is confidential and without prejudice and aspects may be divulged in subsequent proceedings. This illustrates the point that the realm of labour law is continually evolving to give substantive effect to the purpose of the LRA in the process of disputes where technicalities can trip up those who are not legally represented.

The purpose of conciliation is to provide an informal forum (free from attorneys) for the purpose of dispute resolution (as opposed to combative litigation). Parties are encouraged to enter into discussion in an attempt to resolve their dispute on the assurance that the proceedings are private, confidential and on a without prejudice basis meaning that the content cannot be referred to by either party in later proceedings. During these discussions, parties often canvass the merits of the dispute and potential arguments to persuade the other to settle.

The Constitutional Court held that discussions at conciliation are privileged from disclosure but this does not mean that everything discussed is inadmissible in further proceedings. The Court, further, held that evidence as to the nature of the dispute is not privileged as it does not relate to the substance of the dispute – it is merely descriptive. Therefore in determining the nature of the dispute, the Constitutional Court relied on representations made during conciliation proceedings in its decision.

This judgment may have the effect of causing parties to be reluctant to speak freely in conciliation.    A very real concern is that this approach will inhibit settlement discussions. This is particularly concerning circumstances where legal representation is not permitted during conciliation meetings, and unrepresented parties may be at risk of prejudicing their case at conciliation.

On the other hand, it is often not quite clear what the nature of an employee’s dispute is.  How the dispute is defined impacts on whether legal representation may be allowed in future proceedings and will also determine whether the CCMA or the Labour Court will have jurisdiction to hear the matter.  Employees also regularly change the nature of their dispute during the subsequent arbitration hearing or when they submit a claim in the Labour Court.  When this happens, employers will be able to refer to the employee’s submissions made regarding the nature of the dispute during the earlier conciliation meeting.

In light of this judgment, it is important to adequately prepare for conciliation meetings so that the representatives are comfortable with what they are allowed to divulge or not.

Finally, this is another reminder that the rules and processes of the CCMA are applied in the context of the purpose of the LRA and not to frustrate dispute resolution.

This article was written by Raoul Kissun, Senior Associate, Norton Rose Fulbright South Africa Inc

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