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Dispute Resolution Processes

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STEP 1: DISPUTE REFERRALS

  • Acknowledgement of the referral form; and
  • Allocation of the case number.

STEP 2: SCREENING OF REFERRAL FORM 

  • Screening of referral forms for jurisdiction; and
  • Issuing of jurisdiction ruling in the event the Council does not have jurisdiction.

STEP 3: ALLOCATION OF THE CASE TO THE DISPUTE MANAGEMENT OFFICER (PER SPECIFIC PROVINCE)

  • Appointing the panellist in the specific Province; and
  • Setting down the case.

STEP 4: DISPUTE RESOLUTION PROCESSES

  • Con-Arb / Conciliation; and
  • Arbitration;

STEP 5: THE AWARD VETTING PROCESS

  • The award received within 8 days from the commissioner; and
  • Submitted to the resident panellist for vetting.

Parties should ensure that internal procedures and processes have been exhausted prior to making a referral to the PHSDSBC. The Labour Relations Act encourages parties who are in dispute to first attempt to try and reach an amicable solution to the dispute by exploring internal mechanisms through the Grievance Procedures of the Department or an appeal process in the case of disciplinary hearing, the exception is when you wish to challenge an unfair suspension.

Step 1: If you have a labour problem, it is very important that you take steps immediately. In the case of an unfair dismissal dispute, you have only 30 days from the date on which the dispute arose to open a case, if the case is an unfair labour practice, you have only 90 days to lodge a dispute with the Council.

Step 2: If you have decided to lodge a dispute, you need to complete the PHSDSBC referral form (also known as   PHSDSBC Form 7.11.). These forms are available from the PHSDSBC offices and the PHSDSBC website. (https://www.phsdsbc.org.za).

Step 3: Once you have completed the form, you need to ensure that a copy is delivered to the other party and you must be able to prove that a copy was sent. Acceptable methods include faxing a copy (keep the fax transmission slip), sending it by registered mail (keep the postal receipt), send it by courier (keep proof) or deliver in person (ask the person receiving it to sign for it).

Step 4: You do not have to bring the referral form to the PHSDSBC in person. You may also fax the form or post it. Make sure that a copy of the proof that the form had been served on the other party is also enclosed.

Step 5: The PHSDSBC will inform both parties as to the date, time and venue of the first hearing.

Step 6: Usually the first meeting is called conciliation. Only the parties, trade union or employers’ organisation representatives (if a party to the dispute is a member) and the PHSDSBC commissioner will attend. The purpose of the hearing is to reach an agreement acceptable to both parties. Legal representation is not allowed.

Step 7: If no agreement is reached, the commissioner will issue a certificate to that effect. Depending on the nature of the dispute, the case may be referred to the PHSDSBC for arbitration or the Labour Court as the next step.

Step 8: In order to have an arbitration hearing, you have to complete a request for arbitration form, (also known as  PHSDSBC Form 7.13.). A copy must be served on the other party (same as in step 3). Arbitration should be applied for within three months from the date on which the commissioner issued the certificate.

Step 9: Arbitration is a more formal process and evidence, including witnesses and documents, may be necessary to prove your case. Parties may cross-examine each other. Legal representation may be allowed. The commissioner will make a final and binding decision, called an arbitration award, within 14 days.

Step 10: If a party does not comply with the arbitration award, it may be made an order of the Labour Court.

With the amendments of the LRA, section 188A came into effect. This is unlike a normal arbitration at the PHSDSBC where conciliation has failed and a certificate issued. This process is intended to take the place of a disciplinary enquiry and subsequent proceedings, which are heard by the PHSDSBC. An employer may, by agreement with the employee, request the PHSDSBC to conduct this arbitration if it relates to the conduct or capacity of that employee.

STEPS

  1. The employer must inform the employee of the allegations of misconduct or incapacity.
  2. The employer must complete the PHSDSBC 19 form. It is important to note that the employee must agree to this process. The employee must sign the form to show that the employee has agreed to the process.
  3. The employer is responsible to ensure that payment is made to the PHSDSBC by either a bank guaranteed cheque or by direct electronic payment. Proof of payment must be attached to the form. The cost can be obtained from the PHSDSBC offices.
  4. A copy of the form must be given to the employee.
  5. The employer must submit the form to the PHSDSBC by hand delivery, registered mail or by fax.
  6. Within 21 days after receiving the form and proof of payment, the PHSDSBC must give 14 days notice of the hearing date to both parties.

Note: Fees will only be refunded if the PHSDSBC is notified that the matter has been resolved before the PHSDSBC has scheduled the hearing.

 

Allowed Representation

In the Conciliation proceedings a party to the dispute may appear in person or be represented only by a co-employee, member, an office bearer or official of that party’s trade union or by an employee of National Department or Provincial Administration.

In any Con-Arb or Arbitration proceedings, a party to the dispute may appear in  or be represented only by a legal practitioner on agreement between the parties, a co-employee, member and an office bearer or official of that party’s trade union or an employee of a National Department or Provincial Administration.

General provisions of pre-dismissal arbitrations

The same provisions, which apply to arbitration proceedings, apply to pre-dismissal arbitrations. These are set out in section 138 of the LRA. Briefly, they are the following:

  • The arbitrator may conduct the hearing in a manner considered appropriate to determine the dispute fairly and quickly, taking into account the substantial merits of the dispute must be dealt with the minimum of legal formalities;
  • The arbitrator has the discretion to determine the appropriate form of the hearing;
  • A party may give evidence, call witnesses, question witnesses of the other party and address concluding arguments to the arbitrator.
  • If the parties agree, the arbitrator may suspend the pre-arbitration hearing and try to resolve the dispute through conciliation;
  • If the employee party fails to attend, the arbitrator may proceed with the pre-dismissal arbitration in his / her absence or may adjourn the proceedings; and
  • Any codes of good practice and disciplinary procedures of the Department must be taken into account.

The arbitrator must furnish an award within 14 days after the hearing that contains reasons for the decision. A copy must be served on each party (the General Secretary of the PHSDSBC may extend the 14-day period on good cause shown). The award is final and binding on both parties and it may be made an order of court.

In limine is a hearing on a specific legal point, which takes place before the actual case referred, can be heard. It is a process that addresses the technical legal points, which are raised prior to getting into the merits of the case, and relates to matters of jurisdiction.

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 reason for dismissal unknown, or an unfair labour practice).

The PHSDSBC 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 PHSDSBC giving 21 days’ notice to both parties.

  • 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 PHSDSBC at least 5 working days prior to the hearing.

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

Conciliation is a process where a commissioner meets with the parties in dispute, and explores ways to settle the dispute by agreement. In the Conciliation proceedings a party to the dispute may appear in person or be represented only by a co-employee, member, an office bearer or official of that party’s trade union or by an employee of National Department or Provincial Administration. 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. Parties are encouraged to share 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. The commissioner’s role is to try to resolve the dispute within 30 days of it being referred to the PHSDSBC. 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.

By agreement between the parties or when so directed by the Commissioner, the parties to the proceedings must hold a pre-arbitration conference to-

  • Determine facts in dispute, common cause facts, issues to be decided, and relief claimed;
  • Exchange documents that will be used in the arbitration so that the dispute can be finalised effectively and expeditiously; and
  • Draw up and sign the minutes of the pre-arbitration conference.

When Conciliation fails, a party may request the PHSDSBC to resolve the dispute by arbitration. At an arbitration hearing, a commissioner gives both parties an opportunity to fully state their cases. 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 generally 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, the Act specifies which dispute goes to which process.

In any Con-Arb or Arbitration proceedings, a party to the dispute may appear in  or be represented only by a legal practitioner on agreement between the parties, a co-employee, member and an office bearer or official of that party’s trade union or an employee of a National Department or Provincial Administration.

Lawyers are not normally 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.

If you have a labour problem it is very important that you take steps immediately. The statutory time periods for referring disputes are as follows-

Unfair dismissal – the dismissed employee must refer the dispute to the PHSDSBC within 30 days of the date of the dismissal. If the employer makes a final decision to dismiss, say for example, the outcome of an appeal hearing, the matter must be referred within 30 days of that final decision to dismiss.

Unfair labour practices- the employee must refer the matter to the PHSDSBC within 90 days of the date of the act or omission, which allegedly constitutes an unfair labour practice. If an employee only became aware of the occurrence at a later date, the matter must be referred within 90 days of the employee becoming aware of such occurrence.

If the above time periods have lapsed, the referring party must apply for condonation- he/ she is required to make application to the PHSDSBC to condone the reason that he/she failed to refer the case timeously. This application should preferably be dealt with prior to the Conciliation taking place as it is a jurisdictional fact that needs to be dealt with. However, the LRA states that the Council can condone a late referral at any time. Calculate the days by excluding the first day and including the last day, all days are counted, including weekends and public holidays. Weekends and public holidays are included.

The Commissioner considers the following when deciding whether or not to grant condonation:

  • The degree of lateness of the referral;
  • The reason for the lateness;
  • The prospects of success on the merits; and
  • The prejudice to both parties which includes the importance of the matter to each party.

The applicant may make use of the PHSDSBC form C LRA 7.11.

PHSDSBC Suggestions: The following suggestions are made to assist respondents to prepare for arbitration in a way that facilitates effective dispute resolution. It is also aimed at preventing inappropriate and unnecessary disputes being brought to the PHSDSBC. The PHSDSBC Rules should be consulted at all times in dealing with the Dispute.

ARBITRATION
In principle the preparatory steps for Conciliation also apply for arbitration, including – appropriate representation, being suitably prepared, avoiding postponements, and dealing with jurisdictional issues in advance. Unlike Conciliation however, arbitration is a more formal process. Section 138 of the Act stipulates that-

  1. 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.
  2. 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.

Be open to settlement through Conciliation- section 138 (3) of the Act provides for Conciliation during the Arbitration process. Settlement through Conciliation is still the desirable option. Be prepared for possible settlement before or during the Arbitration process.

Prepare submissions and forward statement of case- compile all relevant documents, including minutes of disciplinary hearings, and make copies for the arbitrator and the applicant. Ensure submissions are clear and concise. Submit at least two weeks in advance of the hearing to the PHSDSBC a statement of case detailing the nature of the dispute, intended evidence to be lead, and the number of witnesses to be called.

Hold a pre-arbitration meeting – to streamline proceedings hold a pre-arbitration meeting with the applicant. Determine facts in dispute and common cause issues. Exchange documents and other materials that will be used in the arbitration. If possible, reduce the issues arising from the pre-arbitration meeting to writing in the form of a minute, and submit such a minute to the PHSDSBC at least seven days prior to the arbitration.

Bring appropriate witnesses – ensure that the appropriate witnesses are available for the hearing, but avoid bringing unnecessary witnesses. Assist in enabling the applicant’s witnesses to attend the hearing. Do not request the PHSDSBC to subpoena witnesses unless absolutely necessary.

In the case of dismissals for reasons related to conduct or capacity, bear in mind s140 of the Act: If the dispute being arbitrated is about the fairness of a dismissal and a party has alleged that the reason for the dismissal relates to the employee’s conduct or capacity, the parties, despite section 138(4), are not entitled to be represented by a legal practitioner in the arbitration proceedings unless-

  • the commissioner and all other parties consent; or
  • the commissioner concludes that it is unreasonable to expect a party to deal with the dispute without legal representation, after considering

Ensure that representatives have a direct knowledge of the case.

Onus in dismissal disputes

Bear in mind s192 of the Act, which states that:

  • In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal.

If the existence of the dismissal is established, the employer must prove that the dismissal is fair

An application for the variation or rescission of an arbitration award or a ruling must be made within fourteen (14) days of the date on which the applicant became aware of the following:

  • The arbitration award or ruling; or
  • A mistake common to the parties to the proceedings.

A ruling made by a panellist, which has the effect of a final order, will be regarded as a ruling for the purposes to rescind a rulling or arbitration award.

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