Labour dispute handling: My way, your way, or our way

GEORGE NEWS - There is an old adage to the effect that conflict resolution could be based on:

My way
Your way, or
Our way

It is generally accepted that “our way” is the most preferable resolution, as it involves compromise from both sides to avoid (or at least minimise) escalating conflict and costs in all disputes.

Of course this is not always possible and in some cases we do need an objective third entity to bring finality to a dispute: this is after all why we have courts of law and adjudicators in all civilised societies!

These considerations are relevant to all disputes (also outside of the labour arena), but it does come with added time spent, potential costs and of course potential risk, particularly in labour law!

In reality, disputes do get referred and adjudicated in many instances, when perhaps it could have been avoided to the benefit of both parties in dispute - through mediation, facilitation and conciliation (MFC) - if these mechanisms were given a proper and timeous opportunity.

The concept of mediation

So, what exactly is the concept of mediation? It is defined as the intervention of a third person, or mediator, into a dispute in order to assist the parties in negotiating jointly acceptable resolutions to the issues in conflict.

Through the intervention of a neutral facilitator, the objective is to conciliate the matters in dispute to the benefit of all parties involved, (thereby concluding the process of MFC).

The process of MFC is of course not foreign or new in South African context. In particular, labour legislation could perhaps be said to have paved the way and laid the foundation for establishing appropriate mechanisms.

The old Industrial Conciliation Act, 1956, (although this legislation sadly excluded the non-white population in South Africa in the days of apartheid), stated in its introductory title that the main objective of this act was to settle disputes between employers and employees and to regulate terms and conditions of employment by means of agreement and arbitration (if necessary).

In 1979, the Wiehahn Commission was appointed to pave the way in this regard, eventually leading to the current Labour Relations Act, 1995 (LRA).

The LRA clearly states that its main objective is centered on collective bargaining, dispute resolution and conciliation.

This ultimately resulted in the establishment of the CCMA (see below) with its cornerstone objectives based on the concept of MFC and the removal of racial discrimination in the employer-employee relationship.

Of course, South Africa's well-acclaimed new political dispensation was also established in the same era through a process of MFC, leading to the Interim Constitution of the country in 1993 (ending the era of apartheid), ultimately resulting in the final RSA Constitution and Bill of Rights by virtue of Act 108 of 1996. This outcome is still recognised worldwide as a huge success story, (which in fact resulted from an effective MFC process).

We South Africans should never forget the major positive results in this regard, avoiding potential disastrous conflict in the country.

The question is whether the process of MFC, in particular in labour law, is used optimally today to avoid disputes and potential conflict in the employer-employee relationship. There are five major potential role players in this regard:

The CCMA as established by the LRA
Bargaining councils and workplace forums as established by the LRA
IMSSA/Tokiso
Commercial MFC entities
Courts of law

Before we briefly look at the abovementioned institutions, it should be noted that notwithstanding the existence of these mechanisms, South Africa still lost 4.9 million working days due to industrial action in 2023 (compared to 2,4 million working days lost in 2022), which of course significantly impacted on productivity and subsequently economic activity in the country.

Furthermore, the CCMA, being the main entity established in SA to deal with labour disputes, received 3.6 million dispute referrals since 1996. The magnitude and impact of labour disputes in South Africa should therefore not be underestimated!

Let us now turn to some more relevant statistics:

In 2018/19, 193 732 disputes were referred to the CCMA, increasing to 222 1547 disputes in 2019/20. This then decreased to 154 143 disputes in 2020/21 and then 156 777 disputes in 2021/ 22 due to the impact of Covid-19 in South Africa. Since then, dispute referrals have increased to about 15 000 cases per month (approaching the 200 000 per annum mark again) in 2023. Of these disputes, 52% were related to dismissal cases.
IMSSA (Independent Mediation Services of South Africa), established in 1984, was taken over by a private institution called Tokiso Dispute Settlement, some 15 years later. This body is accredited with the CCMA and has about 200 panellists, dealing by means of MFC with disputes referred to it. Currently, just more than 1 000 disputes are referred annually to this institution. According to their respective reports, Tokiso and the CCMA have a settlement rate of around 70% to 75% in referred disputes;
The exact figures related to bargaining councils and workplace forums regarding dispute settlement are difficult to establish, but disputes dealt with through MFC by the about 40 bargaining councils in South Africa would be significant;
*The figures in respect of commercial MFC are not easily unobtainable.
Indications are that the mediation option, created in terms of rules 34, 37 and 41A of the High Court of SA, is totally underutilised at the moment.

Room for improvement

In conclusion, although the abovementioned institutions/mechanisms dealing with the MFC process have a notable degree of success, it is respectfully suggested that there may be room for improvement in this regard, which could only be beneficial for the South African economy.

In a recent visit to Mauritius, I was astounded to note the number of private practices (not law firms!) established in that (relatively small) country with the sole focus being on the process of MFC in respect of any dispute, whether related to labour, commercial, divorce or any other disputes.

This brought home the realisation that perhaps there is room for more such private initiatives in South Africa. There are indeed many skilled and experienced persons in our country who could become involved, with potential benefits for all involved.

Still, employers should also always keep in mind the potential benefits of the MFC process when disputes arise, even on an in-house basis.

Let us all therefore strive actively to use MFC mechanisms rather than ending up with litigation, costs and conflict!

Adv Lukas du Preez