CCMA & BARGAINING COUNCIL DISPUTE RESOLUTION PROCESSES EXPLAINED: CONCILIATION TO ARBITRATION
Written by Mamotuku Khaole
Understanding the dispute resolution process
Workplace disputes are an unfortunate reality in any establishment, including establishments in the Hairdressing, Cosmetology, Beauty and Skincare Industry. Disagreements about dismissals, alleged unfair treatment, wages, working conditions or compliance with employment legislation can escalate into formal disputes requiring intervention by a dispute-resolution body.
For employers in the Hairdressing, Cosmetology, Beauty and Skincare Industry, it is important to understand that the Commission for Conciliation, Mediation and Arbitration (CCMA) is not necessarily the first or only forum available. The National Bargaining Council for the Hairdressing, Cosmetology, Beauty and Skincare Industry (the Council) has its own dispute-resolution procedures, which employers must also understand.
The applicable forum and procedure depend on the nature of the dispute, the Labour Relations Act 66 of 1995 (LRA), the Council’s Constitution and the Main Collective Agreement. Choosing the correct forum, observing deadlines and preparing the necessary evidence can significantly affect the outcome of a dispute.
This article explains the key stages of dispute resolution and highlights practical considerations for employers in the Hairdressing, Cosmetology, Beauty and Skincare Industry.
Which forum should the employer approach?
Before preparing for conciliation or arbitration, the parties must establish which dispute-resolution body has jurisdiction.
The CCMA deals with a wide range of workplace disputes under the LRA. However, where a dispute falls within the jurisdiction of the National Bargaining Council for the Hairdressing, Cosmetology, Beauty and Skincare Industry, the Council’s Constitution and applicable dispute-resolution procedures must be followed.
The Main Collective Agreement provides that disputes arising in the industry which must be referred to a council under the LRA, as well as disputes concerning the interpretation or application of the Main Collective Agreement or another collective agreement concluded in the Council, must be dealt with under the Council’s Constitution. This applies to persons bound by the Agreement, including employers and employees covered by its extension to non-parties.
The Main Collective Agreement also addresses claims for amounts owing under the Agreement and disputes concerning non-compliance. In specified circumstances, an arbitrator may determine an employee’s claim for an amount owing alongside another dispute, while the Council may refer a non-compliance dispute to arbitration. The arbitrator’s powers and potential awards are regulated by the Agreement and the LRA.
For example, a dispute about an employee’s dismissal may follow the applicable statutory dispute-referral process, while a dispute about wages, prescribed benefits or compliance with the Main Collective Agreement may require the Council’s specific procedures.
Referral deadlines: Acting quickly matters
Dispute-referral deadlines are important because a late referral may require condonation, which is not automatically granted.
Under the LRA, an unfair dismissal dispute must generally be referred within 30 days of the dismissal or, where applicable, the employer’s final decision to dismiss or uphold the dismissal. An unfair labour practice dispute generally has a 90-day referral period. An unfair discrimination dispute generally has a six-month referral period, subject to the applicable statutory provisions.
Where a dispute is referred late, the referring party may need to apply for condonation and explain the delay. Employers should therefore keep a record of when the dismissal or disputed conduct occurred and when the referral was received.
For disputes governed by the Council’s procedures, employers should consult the relevant provisions of the Council’s Constitution and the prescribed referral requirements. The statutory time limits and any applicable collective-agreement procedures must be considered together.
Practical example: An establishment dismisses an employee following a disciplinary hearing. The employee subsequently refers an unfair dismissal dispute. The employer should immediately identify the forum, diarise the relevant dates, preserve the disciplinary records and arrange representation. Believing that the dismissal was fair is not a reason to ignore the referral.
Conciliation: An opportunity to resolve the dispute
Conciliation is generally the first stage of the statutory dispute-resolution process. A conciliator assists the parties in exploring whether the dispute can be resolved by agreement.
The conciliator may meet with the parties jointly or separately, clarify the issues and explore possible settlement options. The conciliator does not ordinarily decide who is right or wrong and cannot force the parties to settle.
The CCMA must attempt to conciliate a referred dispute within 30 days of receipt of the referral, subject to any agreed or properly authorised extension. If the dispute remains unresolved, a certificate of non-resolution may be issued. This certificate confirms that conciliation has not resolved the dispute; it does not mean that either party has won.
The Council also has its own dispute-resolution procedures, and employers must follow the relevant steps when a matter falls within its jurisdiction. They should not assume that the CCMA’s administrative processes and forms automatically apply to Council proceedings.
Conciliation should be approached as a genuine opportunity to resolve the matter. Employers should assess the evidence, the fairness of their decisions, the risks of proceeding and the commercial consequences of a prolonged dispute.
For example, if a beauty therapist challenges a dismissal for alleged dishonesty, the employer should consider whether the evidence supports the allegation, whether a fair disciplinary process was followed and whether dismissal was an appropriate sanction. Where the evidence is strong, the employer may elect to proceed. Where weaknesses exist, settlement may be a sensible option.
Any settlement should be recorded clearly in writing, setting out the obligations of each party, payment amounts where applicable, deadlines and whether the agreement resolves the dispute fully. Employers should obtain advice where necessary about recording or certifying the agreement in the appropriate form.
What happens if conciliation fails?
If conciliation does not resolve the dispute, the next step depends on the nature of the dispute and the applicable procedure.
Some disputes may proceed to arbitration at the CCMA or the Council. Other matters may require referral to the Labour Court or another process prescribed by legislation.
For disputes proceeding to CCMA arbitration, a request for arbitration must generally be made within 90 days of the earlier of the date the 30-day conciliation period expires or the date the certificate of non-resolution is issued. The prescribed referral process must be followed, and a late request may require condonation.
Where the Council has jurisdiction, employers should follow the relevant referral, scheduling and procedural requirements in the Council’s Constitution and Main Collective Agreement. They should monitor correspondence carefully and ensure that any deadlines are diarised.
The key lesson is that an unresolved conciliation is not the end of the dispute. It is a transition to the next applicable stage.
Arbitration: When the dispute is decided
Arbitration is the stage at which an independent commissioner or arbitrator hears the evidence and arguments and determines the dispute by issuing an award.
The employer must be able to substantiate its case. In an unfair dismissal dispute, this includes demonstrating the reason for dismissal and the fairness of the procedure followed, in accordance with the applicable law and the nature of the dispute.
Relevant evidence may include the employment contract, disciplinary notice, charges, hearing minutes, warnings, workplace policies, correspondence, attendance records and witness testimony.
Employers should prepare the following:
A chronology: Set out the events in date order.
An indexed document bundle: Arrange relevant documents logically and number the pages where appropriate.
Witnesses: Identify individuals with direct knowledge of the events and ensure they are available.
A clear case: Identify what must be proved, what is disputed, and which documents support the employer’s version.
A realistic assessment: Consider weaknesses in the evidence and whether settlement remains appropriate.
The Council’s arbitration process may also address compliance with the Main Collective Agreement. Under clause 13, an arbitrator appointed in a non-compliance dispute has specified powers, and potential awards may include payment of amounts owing, fines for non-compliance, arbitration fees and costs where authorised by the Agreement and the LRA.
Employers should therefore appreciate that disputes are not limited to dismissal cases. Non-compliance with collective-agreement obligations may carry financial consequences.
Con-arb, representation and postponements
The CCMA’s con-arb process combines conciliation and arbitration in one sitting. If settlement is unsuccessful, the commissioner may commence arbitration immediately after issuing a certificate stating that the dispute remains unresolved, subject to the applicable rules and any valid objection.
Employers attending a con-arb must prepare for both stages. They should not arrive expecting only a settlement discussion if the matter may proceed to arbitration on the same day.
Representation must also be considered in advance. CCMA Rule 25 regulates who may represent a party. In arbitrations concerning dismissal for misconduct, ill health or poor performance, legal representation is not automatic: the parties and commissioner may agree to it, or a party may apply for permission based on the factors listed in Rule 25(1)(c). Employers should confirm that their intended representative is permitted to appear.
Where an employer cannot attend a scheduled hearing, a postponement should be requested promptly and in accordance with the applicable rules. A postponement is not automatic, and the employer should provide a proper explanation and supporting information.
The Council has its own procedural requirements, so employers must check the relevant notice and rules rather than assume that every CCMA procedure applies to a Council hearing.
Failing to attend or prepare adequately can place the employer at a serious disadvantage, including the risk of the matter proceeding in its absence where permitted.
After arbitration: Understanding the award
After arbitration, the commissioner or arbitrator issues an award setting out the outcome and any remedy. Depending on the dispute, this may include compensation, reinstatement, re-employment, payment of outstanding amounts or another appropriate order.
Employers should read the award carefully, diarise compliance deadlines and seek advice promptly if they believe there are lawful grounds to challenge it.
A review application is not an appeal. Disagreement with the outcome alone does not mean that an award will be overturned. A party seeking review must establish a lawful ground for review and comply with the applicable Labour Court procedure and deadlines.
An award should never simply be ignored because management disagrees with it.
Five practical steps for employers
Every employer should adopt five basic practices to reduce the risk of unnecessary disputes:
Keep proper records
Maintain employment contracts, attendance records, disciplinary notices, warnings and relevant correspondence.
Follow fair procedures
Investigate complaints, give employees a fair opportunity to respond, and apply workplace rules consistently.
Check the correct forum
Establish whether the dispute belongs at the CCMA or the National Bargaining Council for the Hairdressing, Cosmetology, Beauty and Skincare Industry and identify the applicable procedure.
Act on deadlines
Record the date of receipt of every referral or notice and diarise all relevant timeframes.
Seek assistance early
Contact the EOHCB or an appropriately qualified labour-relations adviser as soon as a dispute arises.
Dispute resolution is an important part of managing an establishment responsibly. For employers, understanding both the CCMA process and the National Bargaining Council’s procedures is essential.
Conciliation offers an opportunity to resolve disputes by agreement, while arbitration determines the matter where settlement is unsuccessful.
The practical message is clear: do not wait until a hearing date to start managing a dispute. Identify the correct forum, follow the prescribed process, preserve the evidence, and seek assistance early. These steps can reduce unnecessary costs, protect workplace relationships, and help employers navigate labour disputes with greater confidence.
