LABOR DISPUTE RESOLUTION: EEOC [USA] & CCMA [SA] - A COMPARATIVE ANALYSIS

“Once upon a time, men arguably wiser and more sensible than those of the present era settled their disputes by sitting down together in a civilised fashion and talking until the problem was solved. No courts, no judges, no longwinded wrangling over technicalities; just a chat by the fireside, overseen by a fine, shrewd fellow with a knack for negotiation.

This was the method favoured by Confucius, and others before him through 4,000 years of Chinese folklore. Buddha championed it in India; while Japanese chukka isha (mutual friends) have long helped businesses resolve their differences. Not to be outdone, the Roman Empire later picked up the tradition, with intercessors, internuncios, interpolators, and interlocutors frequently shuttling to and from antagonistic parties in a diplomatic bid for peace.

Over the generations, however, the realm of dispute resolution gradually became more convoluted and complex. Flexibility and prudence gave way to formality and structure. While a fair, regulated court system is doubtless something to be celebrated, it has – some believe – served more to quash the world of common sense negotiation than to complement it.”

[Acknowledgement: Article by, Rebecca Lowe “Back to basics” In-House Perspective (December 2013) LinkedIn]

INTRODUCTORY REMARKS

‘In every country. North and South’, J Schregle ‘Comparative Industrial Relations: Pitfalls and Potential’, International Labour Review, 1981, p. 27 points out, ‘workers, employers, and governments have both common and divergent interests, short term and long term. The divergent interests must be accommodated and reconciled…. The way in which such interests are expressed and reconciled is the subject of industrial relations. It will be of necessity vary from country to country. An international comparison must bring out and explain the differences and similarities of national industrial relations systems. 

[See R Blanpain “Comparative Labour Law and Industrial Relations” (1985) 2nd Ed. Kluwer at 3]

Employers and employees usually come together in a common workplace to make products or provide services for an unspecified time. Employers who are not satisfied with workers can, at least if the action can be objectively justified, discharge them. But the normal intention of offering and accepting employment is a continuing relationship.

But continuing relationships – be they marital, business partnerships, or employment – are vulnerable to changing, sometimes diverging, interests, perceived or real. In other words, employment is liable to conflict, both individual and collective. Such conflict may be clear-cut, as when a group of workers is convinced that they are underpaid, or it may be diffuse and not readily apparent, say, some dissatisfaction amongst workers with the style of management in an enterprise. If it is latent and not overt an untoward incident, unimportant in itself, maybe enough to set off a major dispute. Thus, the apparent cause of an industrial dispute is not always the real cause.

Sources of conflict are not confined to the conditions of employment in the employing enterprise. Workers commonly identify their interests with those of workers elsewhere, to the point of being willing to strike in support of them. As members of trade unions who may have both political and broad industrial objectives, workers may use the leverage that withholding their labour gives them to exert pressure on governments or employers collectively. [See Blanpain (supra) 381].  

To avoid costly industrial or workplace conflict governments, established institutions mandated to resolve conflict preferably expeditiously so as to mitigate the cost of protracted labour disputes.

THE COMMISSION FOR CONCILIATION MEDIATION & ARBITRATION (CCMA) – SOUTH AFRICA

In South Africa, the Commission for Conciliation, Mediation & Arbitration (the CCMA) was established by means of an enabling statute, to wit the Labour Relations Act, Act 66 of 1995 (as amended) (the LRA).

What are the obligatory functions of the CCMA?

 The CCMA must, inter alia –

 - attempt to conciliate any dispute referred to it in terms of the LRA or any other law;

 - arbitrate a dispute that remains unresolved after conciliation including a dispute in respect of which the Labour Court has jurisdiction where the parties consent to Arbitration.

 - perform any other duties imposed on it by or in terms of the applicable employment law;

 - compile and publish information and statistics about its activities; and

 - review the Rules, at least, every two years.

 What are the discretionary functions of the CCMA?

 In terms of section 115 (2), (2A), and (3) of the LRA, the CCMA may, inter alia -

 - if asked, advise a party to a dispute about the procedure to follow in terms of the LRA;

 - if asked, assist a party to obtain legal advice, assistance or representation;

 - if requested, provide administrative support to an employee earning below the BCEA threshold;

 - offer to resolve a dispute that has not been referred to it through conciliation;

 - make rules regulating the matters referred to in section 115 (2A) of the LRA;

 - conduct, oversee or scrutinize any election or ballot of a registered union or employers’ organization if asked to do so by that trade union or employers’ organization;

 - publish guidelines in relation to any matter dealt with in terms of the applicable Employment Law; 

 - conduct and publish research into matters relevant to its function; and

- if asked, provide employees, employers, registered trade unions, registered employers organizations, federations of trade unions, federations of employers’ organizations or councils, with advice or training relating to the primary objects of the LRA, or any other Employment Law. 

 What the volume of labour disputes deal with by the CCMA is reflected in its 2014/15 “Annual Report.” [See “2014/15 ANNUAL REPORT” at 5].

DISPUTE REFERRALS

A total of 171 854 were received during the current period [2014/15] compared with 170 673 for the previous cycle [2013/14].

This translates to an average of 687 new cases referred every working day, up 680 from the last year.

SETTLEMENT RATE

The percentage of disputes settled by the CCMA stands at 76 percent, a one percent improvement on the previous year.

The U.S. Equal Employment Opportunity Commission (“EEOC”)

The U.S. EEOC enforces federal laws prohibiting workplace discrimination. The EEOC was created by the Civil Rights Act of 1964. The employment section of the Civil Rights Act of 1964, known as Title VII, prohibits discrimination based on race, colour, national origin, sex, and religion, and also prohibits employers from retaliating against any employee who exercises his or her rights under Title VII.

Today, the EEOC enforces federal anti-discrimination statutes and provides oversight and coordination of all federal equal opportunity regulations, policies, and practices. The Civil Rights movement of the early 1960s peaked in the spring and summer of 1963. On June 19, 1963, President John F. Kennedy sent comprehensive civil rights legislation to Congress, asking it to “make a commitment it has not fully made in this century to the proposition that race has no place in American life or law.”

However, there was stiff political and social opposition to the legislation. Following President Kennedy's assassination in November 1963, President Johnson continued to support the legislation, saying that “no eulogy could more eloquently honor Kennedy's memory than the earliest possible passage of the civil rights bill for which he fought so long.” Finally, and after much compromise, President Johnson signed into law the Civil Rights Act of 1964 on July 2, 1964.

From 1965 through 1971, the EEOC lacked any real enforcement authority. Instead, Congress authorized the Agency to investigate claims of discrimination. If the EEOC found reasonable cause to believe that discrimination occurred, the Agency referred the case to the Department of Justice to litigate. Regardless, during this period the agency significantly impacted the scope of future civil rights enforcement. The EEOC documented the nature and extent of discriminatory practices in employment, the first study of this kind was done. Additionally, the agency assisted individual plaintiffs through its amicus curiae program by filing “friend of the court” briefs interpreting the law.

In 1972, Congress passed the Equal Employment Opportunity Act of 1972, which amended Title VII to give the EEOC authority to conduct its enforcement litigation. The EEOC strongly influenced the judicial interpretation of civil rights legislation. The agency's advocacy defined “discrimination,” a term excluded from the 1964 Act.

In 1973, EEOC advocates pursued litigation leading to the country's most often cited anti-discrimination U.S. Supreme Court opinion, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In that case, the Court held that a plaintiff could prove an individual case of intentional discrimination, or disparate treatment, under Title VII, by showing four factors. Id. At 802. 

There, the plaintiff proved that he was indirectly discriminated against in a hiring case by showing that: 

(1) he was a member of a Title VII protected group;

(2) he applied and was qualified for the position sought;

(3) the employer rejected the plaintiff for the job; and

(4) the employer continued to seek applicants with similar qualifications after the rejection. 

The Court determined that once a plaintiff succeeded in making this bare showing of a prima facie case, the employer must articulate a legitimate, non-discriminatory reason for refusing to hire the plaintiff. Id. 

Absent this showing, the employer is guilty of workplace discrimination. Id. 

Courts and the EEOC apply this analytical framework to cases brought under all federal anti-discrimination statutes.

Today, the EEOC conducts enforcement litigation under several federal statutes that prohibit job discrimination. The federal statutes prohibiting discrimination in employment are:

• Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, colour, religion, sex, or national origin;
• the Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination;
• the Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older;
• Title I and Title V of the Americans with Disabilities Act of 1990 ( ADA), which prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments;
• Sections 501 and 505 of the Rehabilitation Act of 1973, which prohibit discrimination against qualified individuals with disabilities who work in the federal government; and
• The Civil Rights Act of 1991, which, among other things, provides monetary damages in cases of intentional employment discrimination.

The Agency investigates charges of discrimination and, in some cases, brings civil suits based on charges of discrimination. Charges of discrimination are most often filed by private individuals (“complainants”) who believe that their employers have discriminated against them.

The EEOC investigates those charges and issues findings based on its investigations.

In some cases, if the EEOC finds that there is probable cause to believe discrimination has occurred, it may choose to bring an enforcement action against the employer. However, in the majority of the cases, the complainant will independently initiate and pursue any litigation based on Title VII.

However, in the majority of the cases, the complainant will independently initiate and pursue any litigation based on Title VII.

Any individual who wishes to file suit under Title VII or the ADA is required to exhaust his or her administrative remedies before suing the employer in court. In other words, the complainant must first file a charge of discrimination with the EEOC before it may seek a judicial remedy.

[Acknowledgement: See Cornell University Law School Cornell Law School in Ithaca, NY]. 

In its website, the EEOC's statutory role is explained in less legalistic terminology. It has been deemed, appropriate to refer to the explanatory information contained therein hereunder. 

[See https://www.eeoc.gov/eeoc/index.cfm ].

The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.

It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

Most employers with at least 15 employees are covered by EEOC laws (20 employees in age discrimination cases). Most labor unions and employment agencies are also covered.

The laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits.

Authority & Role

The EEOC has the authority to investigate charges of discrimination against employers who are covered by the law. The EEOC’s role in an investigation is to fairly and accurately assess the allegations in the charge and then make a finding.

If found that discrimination has occurred, the EEOC will try to settle the charge. If unsuccessful, the EEOC has the authority to file a lawsuit to protect the rights of individuals and the interests of the public.

The EEOC do not, however, file lawsuits in all cases where discrimination is found to be perpetrated.

One of the objectives is to prevent discrimination before it occurs through outreach, education and technical assistance programs.

The EEOC provides leadership and guidance to federal agencies on all aspects of the federal government's equal employment opportunity program.

The EEOC assures federal agency and department compliance with its regulations provides technical assistance to federal agencies concerning EEOC complaint adjudication, monitors and evaluates federal agencies' affirmative employment programs, develops and distributes federal sector educational materials and conducts training for stakeholders, provides guidance and assistance to its Administrative Judges who conduct hearings on EEO complaints, and adjudicates appeals from administrative decisions made by federal agencies on EEO complaints.

Administrative Enforcement and Litigation

The Equal Employment Opportunity Commission (EEOC or Commission) is the federal agency responsible for enforcing federal laws prohibiting employment discrimination by race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability, or genetic information.

The agency began its work in 1965. More than 40 years later, the public continues to rely on the Commission to carry out its responsibility to bring justice and equal opportunity to the workplace.

• Through its administrative enforcement process, the Commission receives, investigates, and resolves charges of employment discrimination filed against private sector employers, employment agencies, labour unions, and state and local governments, including charges of systemic discrimination. 
• Where the Commission does not resolve these charges through conciliation or other informal methods, the Commission may pursue litigation against private sector employers, employment agencies, and labour unions (and against state and local governments in cases alleging age discrimination or equal pay violations). The EEOC may also participate in ongoing litigation as amicus curiae.

The EEOC also leads and coordinates equal employment opportunity efforts across the Federal government and conducts administrative hearings and issues appellate decisions on complaints of discrimination filed by federal employees and applicants for federal employment.

Enforcement

Private Sector Enforcement Program: Providing quality services that are fair and prompt for both employees and employers in the administrative processing system is vital to the EEOC's mission. In FY 2015, it received 89,385 private sector charges of discrimination.

The EEOC achieved 92,641 resolutions, with a merit factor resolution rate of 18.1%. (Merit factor resolutions include mediation and other settlements and cause findings, which, if not successfully conciliated, are considered for litigation.)

Through administrative enforcement activities, the EEOC secured more than $356.6 million in monetary benefits. Overall, the EEOC secured both monetary and non-monetary benefits for more than 16,760 people through its enforcement processing. It's pending inventory reflected 76,408 charges at the end of the fiscal year. [See Enforcement and Litigation Statistics]

Federal Sector Enforcement Program: In its federal sector enforcement role, the EEOC is responsible for providing hearings and appeals after the initial processing of the complaints by each federal agency. Unlike its responsibilities in the private sector. The EEOC do not process complaints of discrimination against federal employees.

In the federal sector, individuals file complaints with their federal agencies and those agencies conduct a full and appropriate investigation of the claims raised in the complaints. Complainants can then request a hearing before an EEOC administrative judge.

In FY 2015, the EEOC received a total of 7,752 requests for hearings. Additionally, resolved a total of 6,360 complaints and secured more than $94.9 million in relief for parties in these complaints.

The EEOC also adjudicates appeals of federal agency actions on discrimination complaints and ensures agency compliance with decisions issued on those appeals. During FY 2015, the EEOC received 3,649 requests for appeals of final agency actions in the federal sector and resolved 3,850 such appeals. [See Annual Report on the Federal Work Force]

Mediation

Private Sector Mediation Program: The EEOC's mediation program has been very successful and has contributed to the EEOC's ability, over the past few years, to manage better its growing inventory and resolve charges in 180 days or fewer.

In FY 2015, the EEOC's National Mediation Program secured 8,243 resolutions and obtained more than $157.4 million in monetary benefits for complainants from mediation resolutions.

Participant confidence in the program is high, with its FY 2015 figures reflecting that 97% of all participants would return to EEOC's Mediation Program in the future.

The EEOC believes this high confidence level helps with continuing efforts to convince parties to charges, particularly employer representatives, of the value of the mediation approach.

Although participants almost uniformly view our mediation program favorably, the percentage of employers agreeing to mediate is considerably lower than the percentage of charging parties agreeing to mediate.

As part of the EEOC's effort to increase the participation of employers in the mediation program, employers have been encouraged to enter into Universal Agreements to Mediate (UAMs). These agreements reflect the employer's commitment to utilizing the mediation process to resolve charges.

Many employers entered into these agreements in FY 2015, resulting in a cumulative multi-year total of 12,456 UAMs.

Federal Sector Mediation Program: Using Alternative Dispute Resolution (ADR) techniques to resolve workplace disputes throughout the federal government can have a powerful impact on agencies' EEO complaint inventories and, in turn, the Commission's hearings and appeals inventories.

Resolving disputes as early as possible in the federal sector EEO process improves the work environment and reduces the number of formal complaints, allowing all agencies, including the EEOC; to redeploy resources that otherwise would be devoted to these activities. 

Also, a growing number of organizations have incorporated dispute prevention techniques into their ADR programs, further increasing productivity and reducing the overall number of employment disputes.

The EEOC efforts in promoting and expanding mediation/ADR at all stages of the federal EEO complaint process also appear to be having a positive effect on federal agencies' EEO complaint inventories. 

As more agencies expand their efforts to offer ADR during the informal process, a continued decrease in the number of formal complaints filed is envisaged. This will reduce costs for complainants and all federal agencies, and enable organizations to focus resources on their primary missions.

The EEOC continues to actively pursue a variety of ways to assist federal agencies in improving alternative dispute resolution by identifying and sharing best practices, providing assistance in program development and improvements, providing training to federal employees and managers on the benefits of ADR, and maintaining a web page that serves as a clearinghouse for information related to federal sector ADR. 

The EEOC states that it intends to continue to expand technical assistance efforts with agencies to encourage the development of effective ADR programs and promote ADR training among government managers and staff.

The above constitutes brief background information as to the similarities and differences between the dispute resolution functions of the SA - CCMA and the USA - EEOC.

PURPOSE OF THE ‘ARTICLE’ CUM POSTING

At the outset it should not be recorded that postings on the LinkedIn network should preferably be brief and not created; nor should it be perceived by the reader as if a comprehensive or an authoritative work of reference on the subject matter. The objective is to edify, within the confines of the medium and to generate interest and possible debate on the subject matter.

The objective is to edify, within the confines of the medium and to generate interest and possible debate on the subject matter.

The purpose of the article is first to focus on the shared statutory responsibility of the CCMA and the EEOC insofar as the legislative duty to conciliate/mediate disputes in an ‘ethical’ manner. The focus, therefore, will be on ethical issues in conciliation/mediation of disputes between employer and employee.

The focus, therefore, will be on ethical issues in conciliation/mediation of disputes between employer and employee.

For the sake of convenience referral in this article to conciliation will include mediation. The author will deal with a comparative analysis of the statutory duties of Commissioners as stipulated in the relevant statutes of both countries. Similarities and differences would be identified and briefly discussed.

Reference will be made to case law and other authoritative publications wherein the issue of ethics and ‘moral correctness’ of a presiding CCMA Commissioner/EEOC Representative were pronounced and commented upon by the Courts and other authorities.

The criticism by participants to dispute resolution will be briefly recorded and comment submitted if deemed necessary. Please note that the author reserves the right to on occasion make humorous remarks and observations. For this, no apology is offered.

At the outset, it should be mentioned that the CCMA and the EEOC have been the subject matter of fierce criticism by all and sundry. At times deservedly so and then on other occasions, the critique was found to be without substance or any factual basis.

Suffice it to pre-warn any student of the Law, Human Resources, or Conflict Resolution that the profession is not for the ‘faint-hearted or those who are unable to deal with disagreeable persons, borderline sociopaths, pathological liars and people with aggressive personality disorders.

It should, however, be said that confrontational or extreme adversarial processes involving the characters above will not be a daily occurrence and is rather an exception than the rule, so to speak. 

In any event, any reputable institution will during the period of study and especially during the working part of the course or degree provide the student with the necessary coping skills in the hypothetical module “Adversarial Conflict Management – 301; ‘Sub-Module Survival Skills”. 

Mediation or Conciliation are being used by the EEOC as well as the CCMA. The process is however not a panacea to resolve all labor disputes and will be addressed hereunder.

THE STATUTORY REGIMES - A BRIEF ANALYSIS

Dispute resolution in the USA - EEOC: 

The various empowering statutes that form the legislative framework from within which the EEOC functions have been referred to supra. [See Cornell Law School article as well as the information contained and legislative interpretation by the EEOC as published on the website: https://www.eeoc.gov/eeoc/index.cfm ].

Suffice it to mention that the EEOC's interpretation of its rights and obligations vis-a-vis that of employers including lawyers acting on behalf of the parties have to date led to extensive litigation that 'climaxed', or rather reached the US Supreme Court in the matter Mach Mining v. EEOC.  

In an article published in the publication, theemplawyerologist (April 30, 2015) the learned author provided a summary, an explanation of the cause of action and the Ruling by the US Supreme Court as well as observations.

The article has been included below especially for the edification of SA readers who may not be well-versed in US legislation and the issues in contention.

"MACH MINING v EEOC – US SUPREME COURT

We interrupt our regularly scheduled program with some breaking news. Yesterday, the US Supreme Court issued a ruling in Mach Mining v. EEOC. I previously wrote about that case here. That case started with a discrimination charge on behalf of a woman who Mach Mining declined to hire.

The issue before the US Supreme Court, however, was about whether the EEOC’s duty to resolve charges through informal means was subject to Court [judicial] review. Technically, the US Supreme Court’s answer is “yes”. Join the EmpLAWyerologist after the jump to see what this decision means for employers and the EEOC.

To understand this ruling we first have to look –briefly–at one particular part of Title VII of the Civil Rights Act of 1964. As you know, an employee can file a discrimination charge with the EEOC, and the EEOC then investigates.

If it feels there is reasonable cause to believe that the employer violated one or more of the laws that it is charged with enforcing it may then invite the employer to participate in an informal conciliation process. If conciliation fails the EEOC may sue the employer–but it must first make an attempt at conciliation. 

So what happened here? The EEOC investigated the employee’s charge and then sent Mach Mining a letter inviting it to participate in informal conciliation proceedings and notifying it that an EEOC representative would be in touch with them to begin the process. So far, so good, right? There’s only one problem.

[This may be termed by a cynic as 'The RSVP - Issue' - the author hereof's insertion].

The EEOC never followed up with Mach Mining, until one year later, at which time it sent Mach Mining a letter stating that conciliation had failed– and sued shortly after that.

Mach Mining alleged in its answer that the EEOC failed to conciliate in good faith, and essentially argued that the case should be dismissed.

The EEOC argued that its conciliation efforts were not subject to judicial review and that in any case, its two letters (the initial invitation and the letter that followed a year later) were sufficient to fulfill its statutory obligation. While the federal district court agreed with Mach Mining that it could review the EEOC’s conciliation efforts, the 7th Circuit reversed.

The US Supreme Court ultimately agreed with the District Court that the EEOC’s conciliation efforts are subject to judicial review. While the ruling is technically a victory for employers the Supreme Court made it clear that the scope of that review is quite narrow.

Specifically, the Court said that the scope of judicial review is to enforce the EEOC’s statutory obligation to give the employer notice and an opportunity to achieve voluntary settlement and compliance. The court’s rationale for such a narrow holding is that Title VII by its wording gives the EEOC “expansive discretion” in this area.

The Court also noted that the EEOC’s argument that courts were limited to checking the “facial validity” of its two letters “falls short of Title VII’s demands” in that courts would essentially have to take the EEOC’s word that it followed the law, rather than verify that the EEOC actually attempted conciliation.

So what, then, does the EEOC actually have to do to show that it tried to conciliate before suing? It must:

a) inform the employer about the specific allegation(s);

b) describe in a notice what the employer(s) has/have done and which employee or class of employees have suffered; and

c) give the employer a chance to remedy the allegedly discriminatory practice(s).

While an affidavit from the EEOC will usually be enough to show that it met this requirement, if an employer presents concrete evidence that the EEOC did not take the above three steps, a court must “conduct the fact-finding necessary to resolve that limited dispute”.

If a court finds that the EEOC did not do what it was supposed to do, then the court must order the EEOC to do so. In other words, the case does not get dismissed. The parties get sent back out to attempt conciliation. If the EEOC can show that those efforts failed, it may go ahead and sue.

The Court explicitly noted that Title VII contained no language even suggesting that the EEOC was obligated to negotiate in good faith–and therefore, the Court declined to go that far.

Some may say this ruling is merely a slap on the wrist for the EEOC. If, for example, what if the EEOC fulfills the above conditions but uses one or more coercive tactics during the conciliation process? Title VII as written does not appear to address this issue.

Unless at some point Congress decides to amend the conciliation requirement of Title VII, an employer’s sole recourse seems to be to hold the EEOC to the above three conditions. [See (a), (b), (c) supra]

Then again, the objective is not to punish the EEOC. The idea is that settlement without the need for litigation is preferable, and the Court appears to be sending a message reinforcing that principle."

 [Some editing, as well as emphasis and underlining, did by the author hereof].

Legal representation:  

Legal representation before the EEOC is 'automatically' a right albeit during conciliation or litigation that may follow after that. In conciliation proceedings before the CCMA, legal representation is not allowed at all in terms of the provisions of Rule 25 of the Commission's Rules.

Furthermore and also in terms of Rule 25 of the CCMA Rules legal representation in arbitration proceedings may be allowed upon application and where the reason for the dismissal was on the grounds of 'misconduct' or 'incapacity.' 

Labour consultants have no right of appearance in any manner whatsoever before the CCMA. The prohibition includes an appearance in any dispute resolution processes that fall under the auspices or rather jurisdiction of the CCMA. The only exception will be as a witness in dispute proceedings.

Rule 25 is a matter of controversy in SA and has led to litigation as well as a heated debate amongst interested parties. For the purpose of this article, writer deemed it unnecessary to focus extensively on the issue of legal representation before the CCMA. 

Of interest is that a defendant may attend to EEOC proceedings in persona without legal representation.

Appearing before a Court or Tribunal without legal representation may be considered by some as 'Risky business' or termed as done by some as 'Flying solo.'

In an article by US attorney Richard E Cohen Esq, [an esteemed colleague and friend] entitled "U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC) May 27, 2014, LinkedIn, the learned author dealt with the risks involved in attending to EEOC mediations or proceedings that may follow after that.

Comments and opinions by various people followed including lawyers as well as individuals who for various reasons decided to attend to the EEOC proceedings without legal representation as well as labor consultants.

One comment, for example, was "the EEOC mediators do all they can to push a settlement, including various threats of litigation and EEOC enforcement. In fact, she said that with ADR being the EEOC’s “biggest cash cow,” to settle cases for as much as possible EEOC mediators capitalize on employer insecurity, fear of the costs of defense, and a threat of EEOC enforcement actions."

Another interesting comment was made in the form of advice by the Director of what appeared to be a labour consultancy practicing under the name and style of "First Aid in Employment/Labour Problems at HR Bandaid in the Indianapolis area.

The advice provided was (stay calm, breathe a bit, and only respond to charges as posed. (To which advice the author replied "we do not necessarily agree with, but he claims to have had success, so who are we to argue)": 

“Best defense in EEOC charges … don’t use an attorney unless necessary. Keep the responses to the charges on the same level as the charging party. Deny, deny, deny… and keep answers simple when responding.

Don’t involve too much “manucha” [minutia?] and names of “other employees” in the response. Attorneys’ names on responses signals “deep pockets” of the respondent.

Stay calm, breathe a bit, and only respond to charges as posed.

Trust me … I have had over 156 of charges found with “No Probable Cause” to continue.” 

Writer hereof cannot question the importance if not wisdom intrinsic in the advice to 'stay calm applicable almost in any situation.' :-).

Dispute resolution in SA - CCMA:  

[See CCMA Website: https://www.ccma.org.za ]

Since its inception, the CCMA has enjoyed a national settlement rate of 70% and greater - a clear signal that the CCMA is committed to restoring sound labour and industrial relations within the South African economy.

Dispute Resolution Processes - CCMA

Conciliation:

Conciliation is a process where a commissioner meets with the parties in dispute and explores ways to settle the dispute by agreement. At conciliation, a party may appear in person or only be represented by a director or employee of that party or any member, office-bearer or official of that party's registered trade union or registered employer's organisation. The meeting is conducted in an informal way.

The commissioner may begin by meeting jointly with the parties and asking them to share information about the dispute. Separate meetings between the Commissioner and each party may also be held.

Individuals are encouraged to exchange information and to come forward with ideas on how their differences can be settled. The commissioner may also put forward suggestions.

A Commissioner is given wide functions in conciliation. The Commissioner may determine a process which may include mediation, facilitation or making recommendations in the form of an advisory arbitration award.

A Commissioner may cause persons and documents to be subpoenaed, and has the power to enter and inspect premises and seize any book, document or object that is relevant to the dispute.

The Commissioner's role is to try to resolve the dispute within 30 days of it being referred to the CCMA. If the dispute is settled, an agreement will normally be drawn up, and that ends the matter.

The Commissioner will issue a certificate recording that the dispute has been settled.

Con-Arb:

Section 191(5A) makes provision for the Con-arb process, which is a speedier one-stop process of conciliation and arbitration for individual unfair labour practices and unfair dismissals.

In effect, this process will allow for conciliation and arbitration to take place as a continuous process on the same day. The process is compulsory in matters relating to-

• dismissals for any reason relating to probation; and
• any unfair labour practice relating to probation.

If no objection is received, this process may be used for any other dispute (conduct, capacity, continued employment intolerable, less favourable terms after an s197 or s197A transfer, a reason for dismissal unknown, or an unfair labour practice).

This process may not be used for dismissals relating to unprotected strikes. These disputes must be referred to the Labour Court after conciliation has failed at the CCMA.

The CCMA must give both parties at least 14 days' notice of the hearing date. If a party fails to appear or to be represented, the conciliation will continue on the scheduled date.

If the arbitration does not immediately follow the conciliation as set out in the notice, the arbitration must be scheduled either in the presence of both parties at the conciliation or by the CCMA giving 21 days' notice to both sides.

If the arbitration does not immediately follow the conciliation as set out in the notice, the arbitration must be scheduled either in the presence of both parties at the conciliation or by the CCMA giving 21 days' notice to both sides. 

Objections to the con-arb process: 

No objection will be allowed for disputes relating to probation. An employee may object by indicating such on the LRA form 7.11.An employer may object to this process by giving written notice to the CCMA, at least,

An employer may object to this process by giving written notice to the CCMA, at least, seven days before the hearing.

NOTE: Regardless of the employer objecting to this process, the employer must attend the conciliation.

 Arbitration:

When conciliation fails, a party may request the CCMA to resolve the dispute by arbitration. At an arbitration hearing, a commissioner gives both parties an opportunity to state their cases fully. The Commissioner then makes a decision on the issue in dispute.

The decision, called the arbitration award, is legally binding on both parties. Attempts must be made to resolve the dispute through conciliation. If it cannot be resolved by conciliation, the parties can go to arbitration or the Labour Court, and the Act specifies which dispute goes to which process.

In an arbitration hearing the party in dispute may appear in person or be represented by a legal practitioner, a director or employee of the party or any member, office-bearer or official of the party's registered trade union or registered employers' organisation.

Lawyers are not usually allowed to represent parties in arbitrations over dismissal disputes. They can be used though if the commissioner and the parties consent, or if the commissioner decides that it is unreasonable to expect a party to deal with the dispute without legal representation.

Having heard the parties and their arguments, the Commissioner will decide the outcome of the case, by issuing an award. The decision is legally binding on the parties, and it ends the dispute. Arbitration awards are sent to the parties within 14 days of the arbitration.

In a recent Labour Court judgment of Cindi v Commission for Conciliation Mediation and Arbitration and Others (JR 2610/13); [2015] ZALCJHB 236; [2015] 12 BLLR 1207 (LC) the Court was required to assess the role a Commissioner plays in facilitating a settlement agreement at the CCMA. 

In this case, an employee referred an alleged unfair dismissal to the CCMA. During conciliation, the commissioner informed the employee that she had no prospects of success and that she should rather settle the matter. 

As a consequence of the commissioner's comments, the employee agreed to sign a settlement agreement at the CCMA.

As a consequence of the commissioner's comments, the employee agreed to sign a settlement agreement at the CCMA.

It was some time after the employee signed the settlement agreement that she had second thoughts and was no longer happy with the outcome of the process. 

The employee then approached the Labour Court with an application to review and set aside the settlement agreement in that she was of the opinion that the commissioner:

1. was not impartial;
2. inappropriately persuaded her to sign the settlement agreement;
3. unduly influenced her to sign the agreement; and
4. exceeded his powers by giving her advice on the fairness of her dismissal.

The Labour Court, for the following reasons, refused to review and set aside the settlement agreement:

That the settlement agreement was not made an arbitration award and as such, could not be reviewed.

That a Commissioner merely facilitates a settlement agreement and has no decision-making powers.

That a settlement agreement does not constitute a ruling or decision made by a commissioner.

That the role of a Commissioner, through conciliation, is to procure an offer from the company that will ultimately be acceptable to the employee.

That the final decision to conclude a settlement agreement lies solely in the respective party's hands and is not the commissioner's decision.

Conclusion:

It is of importance to mention that CCMA Commissioners are bound by the CCMA Code of Conduct For Commissioners recently published under GN 918 in GG 38230 of 21 November 2014 [with effect from 01 December 2014].

The said Code constitutes a comprehensive document that prescribes ethical and 'moral behavior' by Commissioners in any and all process in which he/she presides.

Therefore, the South African public can be assured of the professional and ethical conduct of CCMA Commissioners.

In the event of a breach of the said Code, the relevant Commissioner will be disciplined under the procedures in the Code read with the relevant provisions of the LRA the regulates misconduct by Commissioners. 

Johann Scheepers

March 14, 2016

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