CCMA Conciliation vs Arbitration: What Happens at Each Stage?

Key takeaways

• CCMA conciliation is a private settlement process. The commissioner helps the parties explore a voluntary resolution but does not decide the substantive merits of the dispute. CCMA arbitration is an adjudicative hearing: the parties present evidence and argument, and the commissioner issues a final and binding arbitration award.
• Con-arb combines both stages on the same scheduled day. Conciliation happens first. If no settlement is reached and the matter must or may proceed through con-arb, arbitration can start immediately. A party who receives a con-arb notice should therefore arrive ready for both negotiation and evidence.
• The certificate issued when conciliation ends does not mean the employee won or the employer lost. If the dispute remains unresolved, the next route depends on the type of dispute: it may be CCMA or bargaining-council arbitration, the Labour Court, or in some collective disputes, protected industrial-action steps. Read the certificate with the governing legislation and notice rather than assuming every matter goes to arbitration.
• | Question | Conciliation | Arbitration | | --- | --- | --- | | Main purpose | Help the parties reach their own settlement | Decide an arbitrable dispute on evidence and law | | Who controls the outcome? | The parties decide whether and how to settle | The commissioner determines the outcome | | Are merits decided? | No substantive or procedural merits finding | Yes, within the dispute and jurisdiction referred | | Typical process | Guided discussion, joint and separate meetings, proposals | Opening issues, documents, witness evidence, cross-examination and argument | | Confidentiality | Private, generally without prejudice and subject to stated exceptions | Formal evidentiary record; not a settlement conversation | | End document | Signed settlement and resolved certificate, or unresolved certificate | Written arbitration award | | Preparation emphasis | Interests, settlement authority, options and essential facts | Issues, onus, witnesses, documents, objections and remedy evidence |

1. Start by identifying the event on the notice

A CCMA notice may schedule conciliation, arbitration, or con-arb. Those words determine how to prepare, but they do not by themselves prove that the CCMA has jurisdiction or that the dispute has been categorised correctly.

Confirm:

• the CCMA or bargaining-council case number;
• the referring party and every cited respondent;
• the dispute type selected on the LRA 7.11 referral;
• the hearing date, time, venue and whether it is in person or online;
• whether the notice says conciliation, arbitration or con-arb;
• whether an interpreter has been requested;
• whether the other party was served and the contact details are current; and
• any direction about documents, preliminary points or a pre-arbitration conference.

The correct forum matters. A dispute covered by a bargaining council, statutory council, collective agreement or accredited private procedure may have to be referred there rather than to the CCMA. The CCMA's online referral platform expressly warns users to check this. Preserve the referral, proof of service and jurisdiction facts such as the workplace, employer identity, employment relationship and applicable sector.

The CCMA glossary provides an overview of the institution. It does not decide forum, jurisdiction or the dispute category in a particular case.

2. What happens at CCMA conciliation

Conciliation is the compulsory first dispute-resolution stage for matters that the labour legislation requires to be conciliated. The outcome remains voluntary: the commissioner can suggest options and manage the discussion, but cannot force either party to sign a settlement.

The commissioner may:

• ask each party to describe the dispute and the outcome sought;
• identify common ground and the issues preventing settlement;
• meet the parties together or separately;
• test possible settlement terms;
• help clarify the true nature or categorisation of the dispute; and
• address preliminary matters such as lateness, jurisdiction, the correct forum or referral compliance where appropriate.

The commissioner does not decide at conciliation whether the dismissal was fair, whether a witness is truthful, whether a policy was breached or what compensation must be awarded. Settlement positions are not evidence of liability.

Conciliation proceedings are private and generally confidential, off the record and without prejudice. The current CCMA information sheet records exceptions, including discussion about the nature or categorisation of the dispute, written party agreement or a court order. Do not secretly record the process or repeat a proposal later as if it were an admission.

The conciliation glossary explains the settlement function. For the hearing itself, prepare a short chronology, the referral, key documents and a realistic settlement range rather than a trial-length presentation.

3. Prepare settlement terms before the discussion starts

An employee and employer can settle on terms that an arbitrator might not impose. Depending on the dispute, options may include reinstatement, re-employment, payment, leave or record corrections, a reference, an agreed termination date, withdrawal of allegations, return of property or another lawful workplace arrangement.

Before signing, check that the document states:

1. the parties' full legal names and the CCMA case number;
2. every obligation, amount, action and deadline;
3. whether an amount is gross or net and how statutory deductions will be handled;
4. the date and practical conditions for reinstatement, re-employment or reporting for work;
5. the effect on service, benefits, leave, records and disciplinary findings where relevant;
6. which claims or disputes are settled, withdrawn or preserved;
7. whether confidentiality, non-disparagement, reference or return-of-property terms are workable;
8. what happens if a party does not comply; and
9. whether the person signing has authority to bind the party.

Do not sign because the hearing is stressful or because someone describes a term as “standard”. A conciliation settlement is final and binding. The CCMA explains that a qualifying settlement can be made an arbitration award and enforced. Wording that is vague about dates, tax, reinstatement, claims released or payment conditions can create a second dispute.

4. What an unresolved certificate does—and does not do

If the parties do not settle, the commissioner issues a certificate stating that the dispute remains unresolved. The certificate records the outcome of conciliation; it is not a merits judgment and does not award compensation or reinstatement.

Next identify the statutory route:

• Arbitrable dispute: a qualifying party requests arbitration, normally on LRA Form 7.13, unless arbitration is continuing immediately through con-arb.
• Labour Court dispute: the legislation may require adjudication rather than CCMA arbitration, depending on the pleaded reason and type of dispute.
• Collective-interest dispute: the unresolved certificate and statutory period may be part of the route toward protected strike or lockout action, subject to the full legal requirements.
• Wrong forum or jurisdiction problem: the party may need to correct the forum, citation, service or referral instead of simply requesting arbitration.

The current CCMA rules information sheet states that a request for arbitration must be made within 90 days after the earlier of the end of the 30-day conciliation period or the issue of a certificate of non-resolution. A late request requires condonation. Deadline calculation can be affected by the legislation, any valid extension, service and the actual procedural history, so record the dates immediately and obtain advice where they are disputed.

5. What happens at CCMA arbitration

Arbitration is a hearing in which the commissioner decides the referred dispute. Section 138 of the Labour Relations Act requires the commissioner to determine the dispute fairly and quickly, with the minimum of legal formalities, while dealing with the substantial merits.

A typical arbitration may include:

1. Introductions and preliminary issues. The commissioner confirms appearances, interpretation, representation, the dispute, relief and any jurisdictional or procedural point.
2. Opening clarification. The parties identify what is common cause, what is disputed and who bears the duty to prove particular facts.
3. Documentary evidence. A party introduces relevant documents through evidence and explains their authenticity, date, author and significance.
4. Witness evidence. Witnesses testify under oath or affirmation and are questioned by the party calling them.
5. Cross-examination. The other party tests the account and should put a materially different version to the witness.
6. Re-examination where permitted. The calling party may clarify issues arising from cross-examination without simply repeating the evidence.
7. Closing submissions. The parties connect the proven facts to the legal test and remedy.
8. Award. The commissioner issues a reasoned written outcome after considering the record.

The commissioner may choose a procedure suited to the dispute. Not every hearing follows courtroom ritual, and rigid technical objections should not replace the merits. But informality does not remove the need to prove disputed facts with admissible, reliable evidence.

The arbitration glossary explains the adjudicative stage. The CCMA checklist can organise the referral, chronology, documents, witnesses and hearing logistics without predicting the award.

6. Build the arbitration file around disputed issues

Do not bring an unsorted workplace archive. Start with an issue list and connect each issue to a witness or document.

Paginate and index the working bundle. Keep originals and proof of service. A document does not automatically prove its contents merely because it appears in a bundle. Identify who created it, received it or can explain the business record.

Prepare questions rather than a memorised speech. Each material version should be put to the opposing witness so that the commissioner can assess the dispute fairly. Separate evidence about what happened from closing argument about what the evidence means.

7. Con-arb means preparing for both stages on the same day

At con-arb, the commissioner first conducts conciliation. If the dispute remains unresolved, arbitration begins immediately, unless the process is validly interrupted, objected to where objection is allowed, or adjourned by the commissioner.

The current CCMA con-arb sheet identifies categories where con-arb is compulsory, including dismissal for a reason related to probation, an unfair labour practice related to probation, specified BCEA compliance-order disputes and qualifying claims for amounts owing under section 73A of the BCEA. Other qualifying disputes may proceed by con-arb where no valid objection is made.

Where objection is permitted, current Rule 17 requires written notice to the CCMA and the other party at least seven days before the hearing. A late objection requires condonation. A party cannot use an objection to avoid compulsory con-arb categories.

The CCMA also lists disputes for which con-arb is not followed, including several collective-agreement, workplace-forum, automatically unfair dismissal, operational-requirements, unprotected-strike, severance-pay and discrimination matters. The exact route still depends on the pleaded dispute and governing legislation.

Practical preparation for con-arb should therefore contain two clearly separated folders:

• Conciliation folder: settlement objectives, authority, calculations and draft terms.
• Arbitration folder: issue list, indexed evidence, witnesses, preliminary points and remedy proof.

Do not reveal confidential settlement concessions in the arbitration phase. The con-arb glossary explains the two-stage structure.

8. Representation is not the same at every CCMA event

Current CCMA Rule 25 controls who may represent a party. A party may appear personally, and specified employees, directors, close-corporation members, trade-union or employers' organisation representatives may qualify. Legal-practitioner and candidate-attorney representation can depend on the stage, dispute type, consent and a commissioner's ruling.

Do not assume that bringing a lawyer guarantees admission, or that a lawyer is never allowed. Confirm the event and dispute category, deliver any required application in time and bring the authority or membership documents on which the representative relies.

Even where a representative appears, the employee, decision-maker and witnesses must know the facts. Representation cannot replace evidence from a person with direct knowledge. A labour lawyer route may be useful for jurisdiction, evidence, representation or Labour Court questions; the lawyer directory allows neutral comparison.

9. Attendance, postponement and online-hearing risks

A hearing notice remains effective unless the CCMA grants a postponement or issues a replacement notice. An agreement between the parties does not automatically postpone arbitration. Current Rule 23 provides a written process and makes clear that postponement is an indulgence, not a right.

If a party does not attend:

• conciliation may proceed as permitted and a certificate may still be issued;
• an arbitration may proceed in the party's absence, or the referring matter may be dismissed, depending on who is absent and the applicable rule or directive;
• a later rescission application is not guaranteed; and
• settlement negotiations, illness, technical failure or an informal promise from the other side should be proved, not assumed.

For an online hearing, test the link, data, power, audio, camera, private room and document access in advance. Keep screenshots and immediately contact the CCMA using the notice details if a genuine connection failure occurs. For an in-person hearing, confirm the region and venue; the current rules generally place the matter in the region where the dispute arose or the employer's principal place of business is located, subject to an authorised change.

10. Understand the document that ends each stage

Three documents are commonly confused:

• Settlement agreement: the parties' voluntary, signed terms. It is binding and should be drafted so that performance and enforcement are clear.
• Certificate of outcome: records whether conciliation resolved the dispute. An unresolved certificate is not a finding that either party is right.
• Arbitration award: the commissioner's final and binding decision on an arbitrated dispute. Section 138(7) provides for an award with brief reasons, signed and issued within 14 days of the conclusion of arbitration, subject to an agreed extension or the Director's extension on good cause.

An award does not disappear because a party disagrees with it. Certification and enforcement, rescission and Labour Court review are different processes with different grounds and time limits. The Labour Relations Act generally sets a six-week review period under section 145, but case-specific calculation and any stay or enforcement step require prompt advice.

Keep the award, proof of receipt, hearing record, exhibits and case correspondence together. If performance is due, record the exact deadline. If review, rescission or enforcement may be necessary, act immediately rather than waiting for ordinary correspondence to resolve it.

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