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CMAC guidelines

17/08/2013 01:26:00 BY MTHUNZI Shabangu

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The following guide lines are made with a view towards assisting stakeholders to carry out preparations for conciliations, arbitrations and associated processes.

The guidelines are drawn from and they interpret the CMAC Rules as well as the purpose and objective of the Industrial Relations Act, 2000 (as amended).
Once a dispute has been reported and accepted by CMAC, the referring party (or Applicant) is expected to approach the office where the dispute was reported within seven days from the date of acceptance of his or her Report of Dispute to collect an invitation to conciliation. On the other hand, the party from whom relief is sought (or Respondent) is normally served by the Commission with an invitation to conciliation or arbitration, as the case may be.

Avoid Postponements

Once notice of conciliation and/or arbitration hearing has been received, avoid requesting postponements in the absence of valid reasons therefore. The CMAC Rules do provide for postponements but note should be taken that a postponement was not meant to be easily granted. Interpreting the law applicable to postponements the Labour Court in Voster versus CCMA and others (2002) 11 BLLR 1110 (LC) observed that: “A postponement is not a matter of a right; it is an indulgence granted by the Court to a litigant in the exercise of a judicial discretion. This is the position with the Commissioners as well”. (At page 1113).

The Industrial Relations Act (per Section 17 (3)) makes emphasis in the determination of labour disputes fairly and quickly. It is for that reason that postponements are not to be easily granted.
The Commission may postpone conciliation without the parties appearing before a Commissioner if: (a) both parties to the dispute agree in writing to the postponement; and (b) the written agreement for the postponement is received by the Commission more than four days prior to the scheduled date of the conciliation. If a postponement is requested on the day of the conciliation, the Conciliator should only postpone a conciliation in special circumstances such as: (a) if there is good reason to do so; (b) the parties to the dispute are not unduly prejudiced (or disadvantaged) by the requested postponement; or (c) there are prospects that the dispute may be settled as a result of the postponement.

The Commission may postpone an arbitration without the parties appearing before the Arbitrator if: (a) both parties to the dispute agree in writing to the postponement; and (b) the agreement for the postponement is received by the Commission more than seven days prior to the scheduled date of the arbitration; and (c) there are compelling reasons to postpone the matter. If a postponement is applied for on the day of the arbitration, it may be granted only if: (a) there is good reason to do so; or (b) the parties to the dispute are not unduly prejudiced (or disadvantaged) as a result of the postponement.

In terms of the CMAC Rules (Rule 15(4)) the Commission shall not allow more than two postponements at the instance of one party to the dispute, notwithstanding the reasons advanced.
Therefore, it is clear that not any request for a postponement shall be granted. The reason(s) for the request is assessed by the Commission to ascertain its genuineness or reasonableness. If it appears that the reason for the requested postponement is not genuine, reasonable or acceptable or, alternatively, if the postponement shall cause prejudice (or disadvantage) financially or otherwise to the other party who might be ready to proceed, the Commission may decline the requested postponement and order that the matter should proceed.

The situation is made worse by the fact that the Commission does not have power to grant an order for wasted costs, e.g. ordering the party who is applying for a postponement to compensate or reimburse the financial loss incurred by the other party who, together with his/her legal representative, might be ready to proceed.