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It is trite law that CCMA conciliation meetings take place off the record. However, conciliation meetings take place in order that the disputing parties are able to reach consensus openly and freely. What happens then if, for example, the employer or the commissioner coerces the employee into signing the CCMA settlement agreement? How would the employee prove to the Labour Court that the coerced agreement should be struck down, bearing in mind that the content of the entire conciliation meeting is off the record and the threats made during the meeting cannot be raised in court?
The protection of confidentiality does not cover misconduct by any party during the conciliation. If it did, the legitimacy of the conciliation process as a forum for good faith dispute resolution would be severely damaged. It can’t be used as a shield for commit wrongdoing.
An aggrieved party could report a Commissioner who uses threats to coerce a party into signing a settlement agreement to the Director of the CCMA. This would initiate an investigation to examine available evidence of alleged misconduct. And the complainant could make an application to the Labour Court for an order to have the settlement agreement set aside.
The main evidence would be testimony of parties about what they saw and heard in the conciliation. Contemporaneous notes of threats could be used to corroborate the oral evidence. So could any secret audio recording which a party may have made during the hearing.
It’s inherently difficult to prove coercion. So the odds are stacked against the complainant from the start to prove it on a balance of probabilities. The legal principle “caveat emptor” or “let the signer beware” is the most immediate legal hurdle to overcome. And there’s the instinctive perception that the complainant’s real problem is “signer’s remorse” and is looking for a way to nullify the agreement to escape liability.
My experience has been that the Courts demand all the information that was discussed at the conciliation.
In any event it becomes incredibly difficult to prove that an employee was forced or coerced at the conciliation. The normal practice is to bring in a third party such as a second commissioner to come in and to see that the parties can testify that they were not forced to sign an agreement.
It is possible for the content of the conciliation meeting, even if same was off record, to be used as evidence. The amended rules of the CCMA which came into effect on 1 March 2020, in particular Rule 16, provides that:
(1) Conciliation proceedings are private and confidential and are conducted on a without prejudice basis. 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.
(2) No person, including a commissioner, may be called as a witness during any subsequent proceedings in the Commission or in any court to give evidence about what transpired during conciliation unless as ordered by a court of law or a Commissioner conducting an arbitration.
Therefore, in the event the employee alleges that he or she was coerced into signing the agreement, the Labour Court does have the authority to make an order directing the parties to the conciliation to disclose the content of the conciliation meeting i.e. what happened during conciliation. That information would be material in determining the validity of the settlement agreement and therefore the Labour Court may order such evidence to be admitted.
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