Why conciliation comes first
Most disputes referred to the CCMA, including unfair dismissal disputes, must go through conciliation before anything else happens. Conciliation is a meeting run by a CCMA commissioner whose job is to help the employer and employee reach an agreement.
The commissioner does not decide who is right. There is no ruling at the end of a conciliation. The only possible outcomes are a settlement both parties sign, or a certificate stating that the dispute remains unresolved.
Timing
An unfair dismissal dispute must be referred within 30 days of the dismissal. Unfair labour practice disputes must be referred within 90 days. Late referrals need an application for condonation, which is not automatically granted.
Once a dispute is referred, the CCMA must try to resolve it through conciliation within 30 days, unless the parties agree to extend that period.
Who can attend
An employee can attend personally or be represented by an official or member of their trade union. An employer can be represented by a director or employee, or by an official of an employers' organisation it belongs to.
Attorneys and candidate attorneys may not represent either side at conciliation. That is why preparation beforehand matters: the person in the room needs to know the facts, the documents and the limits of what they may agree to.
How the meeting runs
The commissioner usually starts with both parties together, explains the process and then asks each side to set out its position. After that, the commissioner often meets each party separately to test positions and explore a settlement.
What is said in conciliation is confidential and without prejudice. It cannot be used as evidence if the dispute later goes to arbitration or the Labour Court. That allows both sides to speak openly about a possible settlement.
If there is no settlement
The commissioner issues a certificate of outcome confirming that the dispute was not resolved. Depending on the type of dispute, the next step is arbitration at the CCMA or a referral to the Labour Court. Unfair dismissal disputes about misconduct or incapacity generally go to arbitration.
Legal representation is allowed at most arbitrations. For dismissals relating to conduct or capacity, an attorney may only appear with the consent of the parties and the commissioner, or if the commissioner decides it would be unreasonable to expect a party to manage without one.
How to prepare
Bring the contract of employment, the relevant policies, the notice of the disciplinary hearing, the minutes or outcome, and any correspondence about the dismissal. Decide in advance what a realistic settlement looks like for you, and make sure whoever attends has the authority to agree to it.
Most matters that settle do so at conciliation. Going in prepared is usually the least expensive way to end a dispute.
