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PREVIOUS SPEAKERS:
Sarah Christie and Isabel Manley

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Title: Soft law or rough justice? Employment Dispute Resolution for unfair dismissal in the UK and South Africa.

Industrial Law Society – September 2002

The Project

This workshop forms part of a larger project, which is being undertaken by Isabel Manley and Sarah Christie over a period of two years. The research includes meeting with those involved in the systems in both countries and consideration of data on outcomes and other research. We have already led a workshop at the 2002 Labour Law Conference in Johannesburg and intend to hold follow up workshops next year. We are concentrating particularly on the processes involved, how effective and efficient they are for the parties and the state. Our focus is unfair dismissal, which forms by far the largest number of claims in both countries.

Overall, the main question relates to how better systems and processes might improve justice in unfair dismissal disputes in SA and UK. Will the recent changes help? Would stronger case management powers, methods of encouraging early settlement and disposing of weak cases promptly allow for better outcomes for users and stakeholders?

We are focusing on procedures for settlement (including conciliation and mediation) and determination (including strike out, hearings and arbitration) in the Employment Tribunals and ACAS in the UK and in the CCMA, bargaining councils and the Labour Courts in SA. The volume of cases and the speed with which they are completed will be compared, as will the numbers of cases disposed of without a formal hearing.

ILS Workshop 2002

The main areas we want to concentrate on at this conference workshop relate to the most recent developments, primarily in the UK but with some consideration of South Africa. We have assumed that most participants will have fair, if not good, knowledge of UK employment law procedures and we therefore have given more information here on the South African system, as we have assumed a lesser amount of knowledge there. We hope these assumptions are correct.

The governments of both countries appear to accept the need for the state to provide effective mechanisms to resolve employment related disputes. In common with many other countries such as Australia and New Zealand, both talk in terms of quick and accessible systems of resolving disputes.

As a result, both countries have set up different systems but with sufficient similarities to make comparison useful and relevant. There are also very marked similarities in the substantive law on unfair dismissal – for example with the concepts of a fair reason and a fair procedure applying in both countries as well as that of automatically unfair dismissals. Notable differences include the lack of a qualifying period in South Africa (unfair dismissal rights from day one) and how compensation is assessed.

In pursuit of our project we want participants to help us answer questions such as the following:-

Will procedural changes contained within the Employment Act 2002 (EA) and envisaged by the Employment Tribunal System Taskforce really make a difference to the administration of justice in unfair dismissal claims?

(Some of us may want to consider how we might respond to the consultation process over the (dti) "winter" of 2002-3 on regulations under the EA and other government consultations, for instance the "Section 23 review")

How do these compare with amendments to the Labour Relations Act 66 of 1995 and the adoption of rules for the Commission for Conciliation, Mediation and Arbitration in South Africa and can any lessons be learned from that experience?

Are there other ways of improving the system, which have not been considered?

The UK experience – a very brief background

In the UK we have almost forty years of statutory employment law, with the current number of Employment Tribunal (ET) jurisdictions running at over 80 and, until last year, a steady year on year increase in claims, now running at over 100,000. The vast majority of workplace related claims start and end in ETs and whilst those claims that involve more than one jurisdiction continue to increase as do discrimination claims, it remains the fact that unfair dismissal claims alone still account for over 50% of claims though the proportion of claims about termination of employment is much higher.

The ethos of Employment Tribunals as "easily accessible, speedy and informal" (from the Donovan report in 1968) has come under increasing pressure as the volume of cases increases and the law becomes more complex. The notion contained within Schedule 1, Rule 11 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 (the Rules), that - "The Tribunal shall, so far as it appears appropriate, seek to avoid formality in its proceedings" has now been supplemented by the "Overriding Objective" contained within Rule 10 of the Rules – "to enable tribunals to deal with cases justly", which includes –

" a ensuring that the parties are on an equal footing;

2. saving expense;
3. dealing with cases in ways which are proportionate to the complexity of the issues; and
4. ensuring that it is dealt with expeditiously and fairly"

This means, to some extent, that there may often be a conflict between these objectives. For example, the fact that more applicants than respondents are unrepresented may mean they are not "on an equal footing" and dealing with cases expeditiously may be difficult where parties do not always understand the processes and the law which applies to their case. Nonetheless, the system retains high levels of respect (see, for example the Employment Tribunal System Taskforce report)

There is very little formal dispute resolution outside the Employment Tribunal Service (including ETs, EAT and ACAS) No industry councils remain to resolve dismissal disputes since the demise of the Joint Industry Board for the Electrical Contracting Industry and the ACAS arbitration scheme launched in May 2001 has only had 13 cases within its first year. Whilst some commercial mediation alternatives exist there is very little information on how many or how effective these are though the Taskforce identify some and suggest pilot schemes.

The process

In the UK the system, broadly speaking, for the determination of unfair dismissal claims begins with an application to the ET, usually by completing a simple form, IT1.

The claim is then notified to ACAS, which has a statutory duty to try to resolve the matter, and contacts both sides, usually by post and phone. The Employer (Respondent) can respond on form IT3 and, if the matter is not settled, it passes through the ET system, possibly with interlocutory hearings, until it reaches a final (usually public) hearing with a decision, usually announced at the end of the case on the same day and followed up with a written decision. If the Applicant is successful remedy may be decided that same day or at a later hearing, again, if the matter is not settled. Appeal is on a point of law only to the Employment Appeal Tribunal and then to the Court of Appeal, the House of Lords with possible clarification from the European Court of Justice on an EU point at any time in the process.

In unfair dismissal cases, the majority of Applicants are unrepresented at the hearing though it seems more than half consult a solicitor or adviser about their case. Of the 52,000 unfair dismissal claims referred to ACAS during 2001-2002 only just over 10,000 went to a hearing with over 22,000 being settled and 12, 000 withdrawn. Taken overall it seems that a consistent rough figure for settling or withdrawal of cases is about 75%. Whilst this might be considered to be a good rate of avoiding the cost and stress of a hearing, there is really not enough information on those outcomes for a judgment to be made. We do not know whether workers are settling for sums much lower than they would have received at a hearing or whether employers are paying for unmeritorious claims. Maybe, if the parties are satisfied and the 1998 Survey of Employment Tribunal Applications (SETA) suggest they were, may be that is a good enough outcome. However, we would argue that more and better research is needed, in the UK and South Africa on the terms of settlements to assess the real value.

Social, economic and political factors (very, very briefly)

Currently and in the most recent years, the UK economy has been relatively buoyant with low levels of unemployment. Whilst there have been considerable changes in industry, with a continuing trend away from a manufacturing base towards the service industry, changes in the make-up of the workforce to reflect an increase in women workers, part time, temporary and agency work and a lowish level of trade union membership, there has also been an increase in statutory employment rights and anti-discrimination measures, much of it deriving from our membership of the European Union.

South Africa – the system

The central statute regulating individual and collective employment relations in South Africa, the Labour Relations Act (LRA) supports collective bargaining; it outlaws strikes to resolve many rights disputes and it confers general protection against unfair dismissal to all workers without any qualifying periods. The LRA was designed in the fond hope that the establishment of a floor of substantive and procedural rights and accessible processes for conciliating interest disputes and determining rights disputes would lead to a reduction in the adversarialism that characterised South Africa’s industrial relations in the 1980s and early 1990s.

Compulsory statutory conciliation has been integral to South Africa’s dispute resolution system since 1924, but the pathologies of that time, relegated black workers to separate and repressive labour regulation. Under pressure from black trade unions South Africa’s labour relations law began to be integrated in 1979. It was hoped that the militant black unions could be incorporated into the mainstream and thereby controlled. This did not work and during the 1980s the institutional framework was ill equipped to deal with conciliation of rights disputes and conciliation processes became little more than a statutory pause en route to adjudication through the Industrial Court. Most strike action during the 1980s did not comply with the statutory cooling off period.

During the early 1980s alternative and private dispute resolution processes were developed: first mediation resolving interest disputes and soon after an arbitration service. Private processes were demonstratively effective in facilitating resolution of high profile labour conflict in unionised workplaces and appeared to demonstrate that extending rights at work was consistent with profitability and labour peace. The lessons of the failure of statutory dispute resolution and the flexibility of private mediation and arbitration suggested that extending rights at work was not inconsistent with profitability and that collective bargaining could be orderly. But conciliation was unlikely to be effective if the agency itself lacked credibility: the agency would have to be independent of the state, business and labour; would need to be staffed by competent credible people with the authority to devise systems and processes appropriate to the users.

The Commission for Conciliation Mediation and Arbitration (CCMA), with a tripartite governing body was established under the LRA as such an independent dedicated dispute resolution agency, with jurisdiction over the private and public sector. It came into operation on 11 November 1996. The CCMA’s jurisdiction is both proactive and reactive. It must help prevent disputes and it must conciliate and, failing settlement, arbitrate disputes that are referred to it in terms of the LRA. Although its primary jurisdiction is conciliation and arbitration it also facilitates sectoral and workplace forums. It may intervene in the public interest in disputes that have not been referred, and it has occasionally done so. Its statutory aims are exceedingly bold: it is supposed to assist in the transformation of South African labour relations by promoting expedited, integrated, uniform, high quality and simple dispute settlement service and by promoting effective strategies for dispute prevention.

The CCMA was offered as a quick, efficient service but it has been inundated with disputes. At establishment its annual caseload was projected to be approximately 33 100. But in 1997, its first full year of operation, it received 60 007 disputes, nearly double the projected total and in the year to 31^st March 2001 the CCMA received 103096 disputes. The level of unemployment is high, conservatively estimated at 25%. Poverty is widespread and as South Africa has a poorly established social security network, people who have lost their jobs and remain unemployed approach the CCMA because they can and because they, rationally, perceive there’s nothing to lose in trying. Approximately 80% of all disputes are about termination of employment involving one or two employees.

The CCMA has provincial offices in each of the country’s nine provinces and there are three satellite offices. Commissioners who are appointed by the CCMA’s tripartite governing body may be full time or ad hoc part timers; all are on three-year renewable. South Africa is a large and unevenly populated country. Some part-time commissioners are country-based and serve their immediate region. They receive instructions by fax and send their reports and arbitration awards to the provincial office by e-mail.

Using the CCMA

Access is limited to persons employed under a common law contract of employment. The definition does not capture the increasing variety of forms of a-typical work, including labour only economically dependent sub-contractors but employees have access to the full range of protections under the Act without any qualifying period. The LRA was amended in 2002 to extend labour law protection to more vulnerable workers by linking personal service and economic dependency to a rebuttable presumption that the person engaged in a work arrangement, is an employee but the definition itself remains unchanged.

Conciliation practice

The principal features of conciliation of unfair dismissal claims in South Africa are

• A request for conciliation must be filed with the CCMA (in person, by registered post or informally by fax) within 30 calendar days of the dismissal (or the outcome of an internal appeal). A late referral can be condoned on good cause. The Request for Conciliation is not a pleading. Pre-conciliation procedures are required only if the dispute arises out of the failure to conclude an agreement between a registered trade union and an employer regulating organisational rights. No formal impasse is required and no statutory requirement that the referring party must have exhausted domestic remedies.
  
• If the referral is accepted a commissioner is appointed. The CCMA has 113 full-time and more than 300 part-time commissioners. As the CCMA has only 30 calendar days to attempt to settle the dispute by conciliation, this means that screening and scheduling of a conciliation process must be done fairly quickly.
  
• The conciliation process is usually in a single meeting, scheduled on 14 days notice to the parties. Telephonic conciliation is often not practicable: many poor people do not have phones at home and because South Africa is a multi-lingual society (11 languages are officially recognised) and the commissioners are not always able to interpret for the parties.
  
• A conciliating commissioner is not required to assess the merits of the parties’ submissions but they frequently explain the legal framework, the kinds of outcomes that are likely if the matter proceeds and does this in an attempt to induce settlement.
  
• Although a rights dispute may have little prospect of success on the merits in arbitration, the CCMA has no discretion to dismiss a dispute ex parte on the applicant’s own submissions. Although costs can be awarded in arbitration if the arbitrating commissioner determines that the matter was frivolous or vexatious, many consider that this kind of civil law remedy is not appropriate in a tribunal system in which typically, the claimant worker is poor. Workers are not allowed legal representation in conciliation and about half the workers are not unionised.
  
• If the dispute is resolved in conciliation, the settlement agreement can be made an order of the Labour Court and executable as such. If the matter is not settled within conciliation the claim will be arbitrated. However, if the employee claims that the dismissal was tainted by unfair discrimination only the Labour Court has jurisdiction to make a finding of discrimination. There is a further split in jurisdiction: disputes about the fairness of dismissal for reasons to do with the employer’s operational requirements must be adjudicated in the Labour Court. Labour dispute resolution is further complicated because the Labour Court has concurrent jurisdiction with the High Court to entertain claims arising out of the common law and a claim based on unlawful rather than unfair dismissal can be adjudicated in the High Court or the Labour Court. This forum shopping also allows state employees to assert violation of their constitutional rights to bypass the specialist employment forums.
  
• Requests for arbitration must be made within 90 days of the end of the conciliation period or from the date the commissioner certifies the matter is unresolved, whichever is the sooner. The request for arbitration has even less detail than the request for conciliation. All it does is in formal terms claim that the dispute that had been referred to conciliation remains unresolved. Again there are no pleadings.
  
• The formal model for CCMA arbitration is a mix of the adversarial and inquisitorial systems. The core provision dealing with the arbitration process reads:
  "The commissioner may conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly but must deal with the substantial merits of the dispute with the minimum of legal formalities."
  
  Although s138 points to a process that is informal in tone but inquisitorial in focus. The provision states that "subject to the discretion of the commissioner as to the appropriate form of the proceedings, a party to the dispute may give evidence, call witnesses, question the witnesses of any other party, and address concluding arguments to the commissioner." A fully inquisitorial process would enjoin the commissioner to question the parties or witnesses and any cross-examination would be subject to the overall authority of the commissioner. As it stands, the arbitrator is required to narrow the issues in dispute between the parties so that he or shall can clarify exactly what is in dispute and what is irrelevant and can be disposed of; but the process of getting there appears to be party-driven. The underlying principle in adversarialism: that the parties bear primary responsibility for tendering evidence in support of their versions and for arguing their cases presupposes they are equally competent. In South Africa that tends not to be so and yet is not clear if a CCMA arbitrator may go beyond the evidence or submissions raised by the parties in the interests of truth-seeking (most CCMA arbitrators are unlikely to want to do this, partly to avoid the impressing of bias, and they are reluctant to postpone and increase costs). The Labour Court has given little guidance. In one case, it held that although the commissioner was entitled to conduct the hearing in an investigative manner he was still obliged to let a party lead the evidence that it wanted to. This assumes the evidence is relevant. In an inquisitorial hearing if the commissioner has determined, reasonably, that the issues that a party wishes to deal with are not relevant to the legal dispute or that the facts that are disputed are not necessary for the decision, the commissioner ought to be entitled to cut the hearing accordingly. In another it held that if a commissioner is inquisitorial with one witness but not another, that is a gross irregularity and reviewable. The Explanatory Memorandum to the Draft Labour Relations Act in 1995 criticised the procedural burdens on employers under the previous Labour Relations Act. "In cases concerning the alleged misconduct of workers, the courts have generally required an employer to follow an elaborate pre-dismissal procedure and have thereafter conducted a fresh, full haring into the merits of the case. Apart from its duplication and lengthiness, this approach has obvious cost implications for the parties and the State, the draft Bill requires a fair, but brief, pre-dismissal procedure and quick arbitration on the merits of the case.’
  
• In an attempt to provide mechanisms for resolving a dispute by consensus even after an arbitrating commissioner is seized of the matter, a commissioner may suspend an arbitration hearing and, with the consent of the parties, attempt to resolve the matter by conciliation. This can happen at any stage in the proceedings – whether evidence has been led or not. Some commissioners attempt this after opening statements and narrowing the issues in dispute. They do so in plenary session, to avoid compromising their capacity to arbitrate by having encouraged off-the-record concessions, which would taint their neutrality. If the matter does not settle, arbitration resumes. The practice and its efficacy vary considerably from person to person. Occasionally a commissioner initiates conciliation to avoid having to draft an award. Sometimes a matter needs some clarification and a common understanding of the facts before the parties can negotiate effectively and be willing to compromise their differences. If an arbitrator is able – as they often are – to facilitate improved understanding of the material issues and the appropriate legal framework followed by a ‘notional or hypothetical determination, the parties often settle themselves. The express power conferred on the commissioner in s 138(4) also helps the disputants themselves because it clearly demonstrates settlement at arbitration is not a failed arbitration and that it is to be preferred, with or without third party facilitation.
  
  

Comment

Managing its caseload

The CCMA’s target turnaround time is three months from referral to award in the case of a rights dispute. Before its first completed year of service – 1997 – it did not achieve target. A small-scale study of CCMA arbitration of dismissal disputes in mid-1999 showed that the average time from date of dismissal to the last day of the arbitration had stretched to 6.6 months.

Procedural rules

When the CCMA was established it had no clear rules to regulate its processes. There was a set of flow diagrams describing the dispute resolution chain of events and a minimalist set of regulations but nothing for the CCMA. There were internal guides but very little was communicated to the users. CCMA senior commissioners in the different provinces tried various approaches in an overly optimistic anticipation that something that could be dubbed "best practice" would emerge. Unsurprisingly this was slow to be borne. Some of its operational practices were driven by the nature of its electronic case management system. For instance, the statute does not prescribe formal hearings. Indeed, the LRA provides that the commissioner shall devise a process for conciliation, which may include mediation, fact-finding or an advisory award. But the CCMA has an electronic case management system. It was geared to ‘schedule a hearing’ and a notice to set down a hearing. But what was not properly planned, was how the supposed flexibility of conciliation – which the statute called for – could be retained with the rigidities of the case management system. In the absence of statutory regulation and a competent rules board, CCMA conciliation and arbitration was subordinated to its electronic system whereas it ought to have been the other way round. As the caseload increased, inconsistencies in approach between certain provinces emerged; backlogs developed and it became imperative that the CCMA develop and publish clear procedural guidelines. These were developed in 1999 and used during that year but only published formally in 2000. These guidelines for conciliation and arbitration hearings were in response to its own case management problems and to develop consistency. They have been revised from time to time, becoming ever more formal although there is deference to plain language in their expression.

Labour Court review

At the same time as the CCMA struggled with its caseload, dissatisfied losers in arbitration took their awards on review to the Labour Court. Many were successful. The Labour Court’s approach to misdirection or gross irregularity in arbitration was to impose increasing formality. Although a primary reason for the new institution was to eliminate what was seen as excessive formalism of the old dispute-resolving mechanisms so that labour disputes could be resolved quickly, effectively and finally. But the review jurisprudence from the Labour Court required a new formalism: hearings were required to be mechanically recorded; failure to swear in a witness was a gross irregularity. Even competent commissioners were hard pressed to meet the standards required by the Court when they were routinely assigned two cases a day, with minimal administrative support and no secretarial assistance. The Court insisted that administrative efficiency in disposing of cases should not jeopardise justice. The CCMA had little inclination to defend its approach to its jurisdiction. It did not join issue, seldom even filed an amicus curiae brief to explain its understanding of the quasi-investigative jurisdiction set out in s 138 of the LRA. The arbitration process has become more like a court and less like an informal tribunal.

User development

The CCMA has developed training materials and conducted workshops for trade unions on workplace problem solving and dispute screening to encourage unions to screen more rigorously than they do. If the referral was made at one of the offices of the CCMA the CCMA’s case management officers are able to do a fairly thorough check in person, otherwise they check the form for check for compliance with the statute, whether the dispute ought to have been referred to a bargaining council (see below) and if the dispute ought to be handled by some other agency, e.g. the Department of Labour if the claim is for notice pay.

Bargaining councils are permanent institutions of statutory collective bargaining. These councils were fashioned in terms of the Industrial Conciliation Act of 1924 out of recognition that permanent institutions for collective bargaining might service the social good but that there was an important oversight function. However, until the late 1970s collective bargaining excluded black African workers by what came to be called the colour bar. Black workers laboured under a set of highly repressive instruments, statutory and otherwise.

Private sector bargaining councils are established voluntarily by unions and employer organisations for a trade or industry and their jurisdiction may be national or cover a more limited geographical area and at times even for an individual enterprise. The statute lays down certain constitutional essentials but thereafter the parties themselves may regulate their relations. A council has two main functions: first, they are empowered to regulate employment relations in the industry through collective agreements. Secondly, a council has a responsibility to resolve disputes between parties to the council that arise from the collective agreements concluded in the council and other statutory instruments. Council agreements, typically, deal with minimum wages, hours of work, overtime, leave pay, notice periods, retrenchment pay. But they also serve important social security functions through the establishment of industry-wide pension and provident funds as well as training and development. Some of these councils are highly influential because if the unions and employers employ the majority of employees within the relevant industry, the parties can apply to the Minister of Labour to have outcome of collective bargaining within the council to be extended to non-parties within the scope of the council. Councils therefore have a regulatory function because ministerial endorsement through extension to non-parties establishes industry-wide norms. They monitor compliance with their agreements through council agents who have inspectorate authority and are authorised to impose fines on recalcitrant employers for non-compliance.

Dispute resolution is the second most important responsibility of councils: they are obliged to resolve disputes between parties to the councils but they are also encouraged through a process of accreditation by the CCMA to resolve disputes between non-parties to the council. The accreditation process is intended to combine training and development for persons who are appointed by councils to conciliate and arbitrate disputes. The CCMA has a fairly complicated set of arrangements for accreditation and subsidy support for disputes that are resolved.

The overwhelming majority of disputes that are referred to private sector councils (76%) concern alleged unfair dismissals. The capacity of councils to resolve disputes by conciliation is uneven. The Department of Labour reports that the councils settled only 22% of disputes that were formally referred for conciliation, whereas the CCMA settled close on 73%. The wide disparity can be ascribed to a wide variety of factors and is still a matter of controversy. Council officials warn against easy assumptions about the causes of these disparities. It is claimed that although the rate of settlement of disputes that are formally referred is low, there is a high resolution of problems that would, absent competent and responsive agents, develop into disputes. There are strong indications that those sectors characterised by stable institutional arrangements within bargaining councils have far fewer disputes than in non-unionised industries. It may be ascribed to informal mediation by a group of council agents who are knowledgeable and helpful. It is claimed that they play a neutral facilitating role to resolve potential disputes quickly and efficiently. This may mean that the decision may be better explained, better understood and be accepted by the employee or it may be amended or annulled, or the situation may be otherwise resolved to the mutual satisfaction of the parties.

Recent changes in both countries

What is noteworthy is that governments of both countries have recently perceived a need to improve the operation of the system, whether this has been for reasons of efficiency and cost reduction or to improve the administration of justice is debatable. In the UK, the government’s stated objective in the explanatory notes to the Employment Bill is to encourage employers to have proper disputes resolution procedures and to encourage both employers and employees to use these to avoid the need for tribunal proceedings. There is a detailed critique of the government’s position on this and reference to Judge John Prophet, the ET President’s well publicised Note and subsequent government statements in an article by Bob Hepple and Gillian Morris in the current Industrial Law Journal

We want to explore with stakeholders, including users and practitioners, whether these changes will work to achieve a better system.

UK

The Employment Act 2002 (EA) – We concentrate here on Part 2 - employment tribunal reform and Part 3 - dispute resolution in the workplace, (especially where that impacts on matters before the Employment Tribunal)

Employment tribunal reform

Most of this part of the EA gives enabling powers to the Secretary of State (as usual) so we are awaiting draft regulations for the details. However we do know enough to consider the implications. They can be looked at grouped into the following areas

• Costs – ET can consider ability to pay, costs against party’s representative, compensation for preparation time
• Fixed period of consultation – no hearing set during the period
• New mandatory IT1 and IT3 – may require copy documents
• Determination without a hearing, maybe where written consent or uncontested
• Strike out cases at pre-hearing review (page 67ids)

Dispute resolution in the workplace

Here we want to try to concentrate on how the changes will affect the process. Without entering a debate on the efficacy of the new statutory procedures, we want to consider the barring of ET claims contained within Section 32 and the reduction or increase of awards in connection with the non-compliance.

Employment Tribunal Taskforce

Again, concentrating on procedural questions, we will look at the suggestions made for

• encouragement of alternative dispute resolution
• better IT use and telephone conferencing
• anything else

Other

Time permitting, we would appreciate views on further developments which might happen in the near future. These would include

• Employment status review – definition of employee and rights given to workers and employees
• Qualifying periods
• Time limits
• Compensation limits

South Africa

Narrowing of issues

Although most arbitration hearings over dismissal disputes take no more than half a day, the CCMA practice has no clear mechanism for forcing the parties to curb factual disputes; witness statements are rarely exchanged; although there is provision for pre-arbitration hearings, these seldom occur and if they do are largely ineffective in curbing disputed issues.

Con-arb

In an attempt to reduce process costs and avoid an internal workplace enquiry followed by conciliation and then arbitration the LRA has been amended to introduce a compulsory con-arb process for unfair dismissal disputes. This process was amended in 2002 to create a more expedited process for employees who are dismissed during a period of probation if the dismissal relates to performance or incapacity of the employee.

The conciliation phase will tend to focus principally on narrowing the issues in dispute. The parties are told that if conciliation fails they must be prepared to commence arbitration immediately. The normal rules on postponement continue to apply and the main feature of this process is that the applicant is not required to apply separately for arbitration and it is within the discretion of the arbitrator to determine whether to grant a postponement.

A variant new process will allow an employer to include a contract term to invoke compulsory CCMA arbitration (for which the employer will pay) for employees earning above a certain threshold. The award will be final, subject only to review by the Labour Court.

Legal representation

The right to legal representation in dismissal disputes remains contentious. The parties are not allowed to be represented by a legal practitioner in any conciliation hearings and in arbitration legal practitioners are excluded from arbitration over dismissals for misconduct or incapacity unless the commissioner decides that after considering the factual and legal complexity of the case, the public interest and the comparable ability of the parties, that it would be unreasonable to expect a party to deal with the dispute without legal representation. This effectively requires a pre-arbitration trial within a trial and certainly prolongs hearings.

SPECIFIC QUESTIONS

We suggest a number of specific questions. They are roughly in chronological order as a case proceeds and are connected to the issues above. We are, of course, aware that there are many other unanswered questions and many serious points of principle that arise from recent changes and hope that we can begin to address some of them.

Pleadings– application/referral forms – opportunity for respondents’ response and extent to which parties are bound by the cause of action and allegations; -

a) Will the new compulsory forms make matters simpler and for whom?

b) Will they lead to more settlements?

c) What are the minimum pieces of information required?

d) How should applications to amend be dealt with?

Jurisdictional issues – qualifying periods for access to disputes; time limits (extent of condonation/ discretion for late referral/claims); the definition of ‘employee’; -

e) Section 23 review – should there be an extension of some or all rights to our "worker" definition?

f) Should the UK consider a presumption of employment as recent amendment in SA?

g) Should the one year qualifying period remain in the UK?

h) Should South Africa have a qualifying period?

Interlocutory matters – preliminary hearings, directions hearings, pre-trial and pre-arbitration hearings, pre-dismissal arbitration, motion hearings, etc.;

Screening and strike out processes;

i) Will the clarification of the power to strike out weak cases (Section 28 EA) make any difference?

j) Will the "barring" of an ET claim (Section 32 EA)until the statutory procedure has been followed lead to injustice?

Costs

k) Will there be an increase in awards?

l) Is the power to award against representatives useful?

m) How will preparation time be assessed?

n) Can Tribunals do it?

o) Is it an unnecessary interference with justice?

Settlements\withdrawals\successful conciliation (informal conciliation and conciliation by face-to-face hearing); nature of settlements (withdrawal reinstatement/reemployment, compensation or other relief);

p) Will a fixed period for conciliation encourage more settlements and will they be fair?

q) Is there an attempt to limit ACAS’s role after the end of the fixed period?

Access to advice and representation

r) Is there enough access to advice in the UK?

s) Why does representation not seem to be an issue in the UK as it is in South Africa?

Presence of alternative dispute resolution: in individual or collective agreements.

t) Will the encouragement for ADR from the Taskforce make a difference?

u) Would a return to some industry based councils be more effective?

+ any others we think of

Sarah Christie and Isabel Manley

September 2002

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