TAKING THE CON OUT OF
CONCILIATION
Haroun Docrat
2010 CCMA COMMISSIONERS INDABA
“Against all Odds”
Ritz Hotel
2 – 4 December 2010
Introduction

CCMA places a strong emphasis on conciliation and
mediation within the context of our social justice mandate.
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Integral role of the CCMA at the first instance of dispute
resolution is dependent upon two factors:
1. Role and conduct of Commissioners
2. Value added processes to retain user confidence

This presentation highlights the importance of ethical
conduct in processes, by identifying specific forms of
unethical conduct and proposes a framework for
commissioners to assess their conduct.
Unintended effects of Conciliation
and operational imperatives
Rule 16 – Conciliation proceedings may not be disclosed:
(1) Private and confidential ; Off the record / without prejudice
(2) No person / commissioner may be called upon to give
evidence in the commission or any court


Commissioner guides parties to determine the outcome
with restriction on representation or observers
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Conciliation process by design opens the process to abuse
which is exacerbated by a settlement target of 70%

Recourse to review process, challenge agreement or
complain is cumbersome or non-existent
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Reliance on user complaints to monitor conduct !!!!
Commissioner Conduct
and ethics

Minimum set of standards that provides a framework for
ethical practice that promotes public confidence

Primary role: facilitate voluntary resolution of disputes with a
high emphasis on integrity, honesty and independence

Clearly defined standards envisaged in the Code of Conduct
1.Self-determination – voluntary, un-coerced, explained
2.Impartiality – unbiased, unprejudiced and honest
3.Conflict of interest – declare and /or withdraw ?
4.Confidentiality – unless otherwise agreed to
5.Quality and integrity of the process – promotes settlement
Case Scenarios

Scenario 1:
An employer is willing to offer 5 months salary. The
applicant will accept 2 months. The commissioner believes
that the applicant is guilty of the offence and settles at 2.

Scenario 2:
Commissioner tells the applicant that if he doesn’t
withdraw the matter, he will be ordered to pay costs of
R3000.00 or more if he loses the case at Arbitration.

Scenario 3:
Commissioner in a side caucus offers the employer his
business card and indicates that he can “sort out” the
company’s IR problems for a reasonable fee.
Case Scenarios (cont)

Scenario 4:
Commissioner accuses the employer representative of
being a member of a political party that resists institutions
such as the CCMA and is therefore unwilling to cooperate
and settle the matter.

Scenario 5:
A commissioner hugs a former colleague in the reception
area. The former colleague appears as the respondent
representative in the matter. The applicant had witnessed
this. The commissioner fails to disclose or withdraw from
the matter.
Commissioner blind-spots

Commissioners are driven by an over-zealous drive to
settle at all costs.

Manipulation, coercion or subtle threats to achieve
settlement as opposed to exploring viable options

Value judges process in terms of personal prejudice,
opinion and character or personalities of parties

Commissioner command of the process does not conform
to true conciliation model and is out of sync with real role
as a commissioner
Ethics monitor – self test


Was your conduct in line with the Commissioner’s Code of
Conduct?
Did your conduct violate any of the CCMA’s values –
Trust, Integrity, Respect, Accountability, Diversity, Excellence


Did your conduct serve the interest of both parties?
Are you at ease with the settlement or outcome achieved?

If you were one of the parties would you have been satisfied
with the Commissioner’s conduct?

Is your conscience at ease with your conduct?

Could you disclose and justify your conduct…to your peers,
your CSC, a Judge, your family or society as a whole?
Concluding remarks


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Reputation and stature of the CCMA in the labour market
is primarily based on commissioner interaction with
parties, at the first instance of conciliation.
CCMA has an obligation to deliver on its social justice
mandate with far reaching socio-economic consequences
Our endeavour to derive a framework essentially
highlights the importance of ethical conduct. Our journey
should be guided and influenced by the quote below:
“Earn your success based on service to others, not at the
expense of others.”
Thank you!