TAKING THE CON OUT OF CONCILIATION 2010 CCMA COMMISSIONERS INDABA “Against all Odds” Ritz Hotel 2 – 4 December 2010 Haroun Docrat

Introduction  CCMA places a strong emphasis on conciliation and mediation within the context of our social justice mandate.  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  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  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 R 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  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!