- When do I refer a dispute to the PHSDSBC?
A dispute is referred or lodged once all the internal procedures (disciplinary hearing or grievances) have been exhausted and have failed. This is at the Employer-Employee level within the Department.
- What are the processes implemented in an attempt to resolve disputes?
Disputes can be resolved by way of con-arb, conciliating and arbitrating processes.
- How and when do I file for a settlement agreement to be an award and
certification of awards?
It is filed in terms of section 143 through the PHSDSBC then to the Labour Court.
- What would I do if the dispute remains unresolved at a conciliation process?
You may request the PHSDSBC to resolve the dispute by arbitration. At an arbitration hearing both parties would be given the opportunity to fully state their side of the case where the panellist would issue an award which is legally binding on both parties.
- What is the time frame to refer an arbitration to the PHSDSBC?
According to section 136 (1) (b), a party must request the panellist to arbitrate a dispute within 90 days from the date on which the PHSDSBC has issued the certificate of the dispute has not been resolved.
- Which form should the referring party use to refer a dispute for arbitration?
The referring party must use the form 7.13 to refer a dispute for arbitration.
- What notice period must the PHSDSBC give for an arbitration meeting?
The PHSDSBC must give the parties at least 21 days notice, in writing, of an arbitration hearing, unless the parties agree to a shorter period.
- Can I be represented at the arbitration hearing?
At 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, a member and an office bearer or official of that party’s trade union or an employee of a national department or provincial administration.
- Under what circumstances can the panellist consider a legal practitioner to represent me?
The panellist should consider the following:
- The nature of the questions of law raised by the dispute.
- The complexity of the dispute.
- The comparative ability of the opposing parties or their representatives to deal with the dispute.
- How long does it take to receive the outcome of the arbitration?
Section 138 (7) provides that an arbitration award must be issued within 14 days of the conclusion of the proceedings. The General Secretary of the PHSDSBC may extend this period on good cause shown.
- What would I do if I am not satisfied with the award?
Section 145 of the LRA states that any party to the dispute who alleges a defect in any arbitration proceedings may apply to the Labour Court within 6 weeks for an order setting aside the award. The Labour Court may stay the enforcement of the award pending its decision.
- What must I do if the employer failed to comply with the award?
An employee may enforce the award as if it was an order of the Labour Court if the General Secretary has certified it.
- What is con/arb?
It is a one-stop process where conciliation and arbitration take place on the same day; section 191 (5A) makes provision for this process.
- Is it a compulsory process?
In terms of section 191 (5A) the process is compulsory for dismissal and unfair labour practice disputes relating to probation.
- Can I object to the process of con/arb?
If the dispute is one in which con/arb is not compulsory, any party to the dispute may object to the process by giving notice to the PHSDSBC and the other party, at least 5 working days prior to the scheduled date. Parties have no legal obligation to provide reasons for the objection.
- What are its advantages?
Con/Arb promotes the principle of speedy resolution of disputes in that the matter is finalised in 1 day. It is cheaper than separate conciliation and arbitration processes, with regards to costs that may be incurred by the parties.
- How many days notice must the PHSDSBC give for a con/arb meeting?
The PHSDSBC must give parties at least 14 days notice in writing.
- Is legal representation compulsory at con/arb?
In a con-arb process the representation is similar to that of an arbitration proceeding; 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.
- What happens if arbitration does not take place on the same day?
If there is an objection to a con/arb and the matter remains unresolved, a certificate of non-resolution will be issued. The applicant must then apply for arbitration. This fact was confirmed in the leading case of Ceramic Industries Ltd v CCMA & Another (2005) 12 BLLR 1235 (LC), where it was held that if a party objects to a con/arb the whole process is then switched to the old regime.
- What is conciliation?
A process where a panellist meets with the parties in dispute, and explores ways to settle the dispute by agreement (section 133 of the LRA).
- Which referral form should the referring party use to refer a dispute for conciliation?
PHSDSBC Form 7.11.
- What other information must the referring party attach to the PHSDSBC Form 7.11?
Proof that the form was served on the other party to the dispute must be attached to the form. If the referral form is filled out of time, an application for condonation must also be attached.
- How many days notice must the PHSDSBC give of a conciliation meeting?
The PHSDSBC must give parties at least 14 days notice in writing of a conciliation hearing; unless the parties agree to a shorter period.
- Can the PHSDSBC resolve disputes before conciliation meetings?
Rule 12 states that the PHSDSBC may contact parties telephonically or through other means, prior to the commencement of the conciliation, in order to seek to resolve the dispute.
- Who can represent parties at a conciliating meeting?
In 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.
- How long should the PHSDSBC take to resolve a dispute?
The appointed panellist must attempt to resolve the dispute, through conciliation, within 30 days of the date the PHSDSBC received the referral form.
- What happens if conciliation fails or the 30-day period expires?
The panellist must issue a certificate stating whether or not the dispute has been resolved; the panellist must serve a copy of that certificate on each party to the dispute and the PHSDSBC.
- What is an ‘in limine’ hearing?
It is a preliminary hearing on a specific legal point relating to jurisdiction, prior to getting into the merits of the case. Some of the preliminary issues are so important that the determination of the point will dictate whether the dispute referred proceeds or falls away. Condonation, joinder and substitution are some of the preliminary issues that may be raised.
- What is a condonation hearing?
There are various time frames to refer a dispute to the PHSDSBC. For instance, an employee must refer a dismissal dispute within 30 days of the dismissal. For unfair labour practices, it is 90 days. Should a party refer a dispute outside the required time frame, it should apply to the PHSDSBC, to condone its late referral. This condonation application must be supported by an affidavit, and address aspects such as the degree of lateness, the reason(s) for the delay, prospects of success and prejudice to both parties. The PHSDSBC can deal with the application on paper or request the parties to argue their case in a condonation hearing.
- Is legal representation allowed at in limine hearings?
A point in limine requires a procedural ruling based on evidence and/or legal arguments; therefore, legal representation is allowed.
- What if I am not happy with the outcome?
Rulings have the same status as arbitration awards. They are final and binding. A party who is dissatisfied with the outcome, may apply for rescission or review at the Labour Court.
- When do I get the outcome of an in limine hearing?
All rulings must be served on the parties to the dispute within 14 days of the conclusion of the case.
- What is a pre-dismissal arbitration?
It is a process that takes the form of a disciplinary enquiry and subsequent proceedings, which are heard by the PHSDSBC.
- Who can request a pre-dismissal arbitration hearing?
According to section 188A of the LRA, an employer may, by agreement with the employee, request the PHSDSBC to conduct an arbitration hearing, if it relates to the conduct or capacity of that employee. The employer is responsible for the payment of the prescribed fee for requesting a pre-dismissal arbitration hearing.
- Which form should the employer use to request a pre-dismissal arbitration meeting?
PHSDSBC Form 7.19.
- How can the employee consent to the hearing?
The employee must sign the request form to show that s/he has agreed to the process; the consent can also form part of an employment contract.
- How much does the PHSDSBC charge for conducting a pre-dismissal arbitration?
Resolving a dispute by pre-dismissal arbitration costs R 3 900. 00 per day, excluding interpreters fee and travelling and/or accommodation costs.
- How is the request form submitted to the PHSDSBC?
The employer must submit the form to the PHSDSBC by hand delivery, registered mail, e-mail or fax. The employer must give the employee a copy of the form.
- How many days must the PHSDSBC give of a pre-dismissal arbitration meeting?
Within 21 days of receiving the form and proof of payment, the PHSDSBC must give 14 days notice, of the hearing date to both parties. The fee will be refunded if the PHSDSBC is notified, before scheduling the hearing, that the matter has been resolved.
- When should the PHSDSBC issue the pre-dismissal arbitration award?
The panellist must furnish a pre-dismissal award within 14 days after the hearing. A copy must be served on each party. The General Secretary of the PHSDSBC may extend the period on good cause shown.
- What legal status does the pre-dismissal arbitration award have?
It is final and binding on both parties and it may be made an order of court. The Labour Court may only review the award.
- What is a rescission application?
It is an application to overturn of annul an arbitration award or ruling. The ruling or award may be rescinded on the panellists own accord or, on application by any affected party.
- What is the time frame to apply for rescission?
An application for the rescission of an award or ruling must be made within 14 days of the date on which the applicant became aware of:
- The award or ruling, and
- A mistake common to the parties.
- What are the grounds to apply for rescission?
- If the award or ruling was erroneously made in the absence of any party,
- If there is an ambiguity or an obvious error, but only to the extent of that ambiguity or error, and
- If the award or ruling was granted as a result of a mistake common to the parties.
- What is the effect of a rescission ruling?
It is final and binding; any party who is not satisfied with it, may have it reviewed by the Labour Court.
- How do I apply for rescission?
There are no promulgated forms, but the PHSDSBC has put together a standard application form. The application must be supported by an affidavit, a copy of which must be sent to the other party and to the PHSDSBC with proof of service.
- What happens if I am out of time to apply for rescission?
The affected party will have to apply for condonation.
- Panellists are commonly referred to as commissioners.