Late referrals because of lockdown to be condoned

Virus moved us into 4th industrial revolution faster than anticipated, with quicker results

DURING the lockdown period both the Labour Court and the Commission for Conciliation, Mediation and Arbitration (CCMA) closed their doors to the public.

The CCMA valiantly carried on trying to mediate both conciliations and arbitrations.

Many of the brave commissioners tried their utmost to stem the tide of referrals. The success rate of settlement has been enormous and I await the statistics. The CCMA has always settled over 70% of its referral disputes, which is world class.

Likewise, the Labour Court has been closed throughout this period. During the lockdown, disputes have obviously increased as many, many thousands of people have been dismissed for operational requirements and others have experienced unfairness and sometimes illegal activity at the workplace.

Disputes have been on hold and the bargaining councils and the CCMA are expecting a deluge of referrals in the last week of April.

Many of these disputes will be beyond the 30-day time limit in which to refer to the various adjudication bodies. The late referral will obviously be condoned by the various legal bodies and applications in terms of the rules of the CCMA and bargaining councils can be made.

The shutdown for 21 days is an extraordinary event and certainly the only one in our lifetime. All the legal authorities will have to take that into account when deciding to give referrals condonation for late filing.

In particular rule 31 of the CCMA rules explain how it can be done. There is a specific form that needs to be completed and it explains how notice must be given to the opposition party, ie the respondent, and what should be contained in a supporting affidavit. These applications can be done on an urgent basis and it would call upon the authority to dispense with the time limit.

The opposition will be given time to deliver a notice of opposition and an answering affidavit within 14 days from the day on which the application was served on the opposition. Likewise the opposition will have an answering affidavit which will explain whether they are opposing the condonation application.

There will also be a delay in the hearing of the conciliations and the arbitrations.

Normally conciliations are held within 30 days after the referral notice is received by the CCMA and if that conciliation fails the referring party will send in another notice asking for arbitration which is normally heard within 30 days thereafter. With the deluge of referrals it is expected to cause delays.

The virus has also helped us move into the fourth industrial revolution quicker than we thought. The initial conciliation process has become a lot more efficient with the use of telephone, WhatsApp, SMS and email. Virtual mediation discussions are taking place on a regular basis and fortunately virtual settlements are reached in a much shorter space of time.

I have been involved in numerous interventions electronically resulting in literally dozens of settlement agreements which have been satisfactory to both parties and have cost a lot less both in time and money.

The majority of the settlements have taken place without me even meeting my own client and certainly not meeting the opposition. What used to take months has now in some cases been reduced to two hours.

I must commend the commissioners who have been superb at embracing the new technology.

I have even had the opportunity of virtual cross-examination via Skype (with the commissioner’s blessing).

I don’t think any other dispute resolution body in the world is as advanced as we are in South Africa.

For litigating parties, the advancement of virtual mediation and litigation cannot be underestimated.

One only has to think about how much paperwork and travel time is avoided.

Obviously legal costs are brought down to a minimum and frustration is almost negligible.

When I first started practising law, a labour legal dispute would take about 12 months. Two weeks ago I was able to take instructions from a client on a dispute and resolved the dispute within two hours. This was even before I could open a file.

It did take an innovative commissioner and a co-operative colleague who likewise wanted to avoid the ugliness of a nasty drawn-out dispute.

DISPUTES have been put on hold during the lockdown, and the bargaining councils and the CCMA are expecting a deluge of referrals in the last week of April.