CCMA conciliation is need to be approached with open mind. Ever heard anyone saying I do not settle or I am not interested in settling the case?
I heard this couple of times myself when I had to go to the CCMA to conciliate a case. I adopted and carried this mentality for a long time till the day I met good commissioners who squeezed my ego a little and brought me down to basis. They taught me lessons I never thought were important and lessons I could not find in any labour law reference books I have read.
Here are the lessons i learnt from good Commissioners i want to share with you :
Employees will always allege that they were unfairly dismissed and the CCMA will always believe them till you prove the contrary.
No one enjoys losing their job even though they know they are in the wrong. Ex-employees always take chance to see if they can get some quick cash or their jobs back. Employees usually believe they did nothing wrong and reasons for their actions are always valid. Employers’ reason usually do not convince employees that they contravened the policy or the company had to make a certain decision. Decision to dismiss will always be questioned and taken to test for fairness. Sometimes it takes third party such as the CCMA commissioners to speak legal sense to the employee and/or the Union official. Therefore it is vital to allow the CCMA to fully explore settlement options before you can decide not to put anything on the table unless you know you did not follow correct procedure and/or your case has no legal substance. Even if that is the case it will be a better option to weigh your costs of losing the case vs settlement. The I do not settle attitude does not help, I am speaking from experience here. Since there is an inherent conflict between the employer and employees, CCMA commissioners do get the luxury of being trusted by the employees, therefore it is vital for you to do things right and allow the commissioner to explain to the employee.
It is not about who is right and/or who is wrong.
- I always make sure I follow the correct procedures and only dismiss where there exists legally legitimate reasons to dismiss. With that in mind I always believed that I did everything right therefore I did not have to give away anything. That changed when I met a commissioner who asked me this question ” Are you sure you are not putting anything on the table Mr. Makgobatlou? Even a positive reference?” That was when I realised that being right is not what conciliation is about even though it is vital to do things the right way. On that day I followed the commissioner’s guide and put a positive reference letter on the table. I left the room and when I was called back in, the case was withdrawn by the employee and positive reference was accepted. It doesn’t matter how much or what you put on the table, your willingness to settle the case in conciliation mostly when you did everything right puts you in a very advantageous position. Why should you fight if you know you did everything right? Doing things right gives you more bargaining power. This make your case clear and easy for the commissioner to advise the applicant appropriately.
- Just because it is a conciliation process does not mean you don’t have to prepare. It is very embarrassing to enter into conciliation process without knowing who you are dealing with and how you are going to convince the other party to accept your proposal. You wouldn’t even know it when you are missing out on a million dollar cost saver offer. It is not “just” a conciliation process it is a process that can save you time and money. The most important assets in any company. Such mentality leads to “I do not settle attitudes”. A well presented proposal that is guided by rational thinking rather than emotions gives the conciliator opportunity to fairly advise employee party accordingly. It has done me wonders. It takes one to investigate and understand the employee’s reasons to deem employer’s action unfair. With a clear understanding a fair proposal can be made and sometimes accepted. Do not miss great settlement opportunities because you failed to prepare for them. “Success is where preparation and opportunity meets”(Bobby Unser)
Conciliation should not be treated as a process where you prove who is right or who is the boss. It is our responsibility as employers to do things the right way. with that being said we always have to remember that doing things the right way does not mean the case is clear as a daylight that we will win it. Winning begins in conciliation by doing opportunity costing. Giving conciliation process time it deserves can help you win your cases before you can even argue in arbitration. Learn how to conciliate. Win your cases in conciliation.