Much has already been said about the February 2018 decision of the Constitutional Court in September and Others v CMI Business Enterprise CC. There are two aspects of the judgment that are important to those who appear in conciliation processes. The first relates to the status of what is said at conciliation and second is what happens to the actual dispute thereafter where there is uncertainty about the real dispute. It is the latter part that I want to focus on, as I am critical of the conclusion of the majority of the Constitutional Court.

But first, those who appear at conciliation need to be alert that the process is not a mere routine step in the post termination litigation trajectory. The highest court has confirmed that not everything said in conciliation is "off the record" despite the CCMA rule, which provides that "conciliation proceedings are private and confidential and are conducted on a without prejudice basis and that no person may refer to anything said at conciliation proceedings during any subsequent proceedings unless the parties agree in writing or as ordered otherwise by a court of law". 

The purpose of the rule is to allow parties to make offers and counter-offers without being bound by them. The purpose is achieved by the general rule relating to “without prejudice” settlement negotiations. But evidence relating to the nature of the dispute is different and is not privileged. So, certain admissions made, or issues raised at conciliation can be referred to in arbitration. The end result is that parties need to be conscious of what is and is not said, at conciliation for such references may arise in later stages of the litigation process. 

Turning to the second issue - what happens to the claim after conciliation when there is uncertainty about the real underlying dispute? This is not a theoretical question and is encountered in practice very often. For instance, (1) an employee initially refers a retrenchment dispute to conciliation; (2) a certificate is thereafter issued by the CCMA certifying a retrenchment dispute; (3) the employee than finally proceeds to sue in the Labour Court on the basis of an automatically unfair dismissal. Will this be entertained by the Labour Court? 

What we know is that every dispute that goes to arbitration or the Labour Court must first be referred to conciliation. Without a referral to conciliation there can be no further process. But what happens when there is uncertainty about the true nature of the dispute when it gets to the next level? Is the employee bound by what is set out in the referral forms? The majority of the Constitutional Court says no. It concludes that what is said at conciliation about the nature of the dispute is a matter that can be relied upon in determining the actual dispute down the line even (by the Labour Court) if that is not the dispute referred to conciliation in the first place. This is the judgment of the full bench. There is one dissent from Zondo DCJ who disagrees in a well-reasoned judgment. 

Zondo DCJ finds that the conclusion of the majority is not cogent or based on a proper analysis of existing law. I respectfully must agree with Zondo DCJ. 

These simply were the facts: 

• The employees referred an unfair discrimination claim to the CCMA under the Employment Equity Act (EEA). They also referred an unfair labour practice claim under the Labour Relations Act (LRA).
• The employees did not refer a dismissal dispute under the LRA to the CCMA.   
• The CCMA Commissioner issued a certificate referring to the claim under the EEA.
• The employees, however, sued in the Labour Court on the basis of a dismissal claim under the LRA. They allege that they referred to this claim at conciliation even though it was not specifically referenced in the referral document. 
• The Labour Court ultimately granted relief to the employees under the LRA and not the EEA.

In my view, the order of the Labour Court was correctly set aside by the Labour Appeal Court. This was overturned by the Constitutional Court.

At the very least the order of the Labour Court was unfair to the employer – as this was not the case the employer was called upon to defend at inception. As abhorrent as the acts of the employer were in this matter (and for the vile and racist conduct of the employer there can be no justification – let me be clear about my position on the merits), but even this employer is entitled to know the case it was called upon to meet - this being the basic tenant of the rule of law under which we are governed.  

So, at the end of the day you could easily be forgiven for being confused by the conciliation. 

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