An Approach to Conciliating Harassment Disputes 2010 CCMA COMMISSIONERS INDABA “Against all Odds” Ritz Hotel 2 – 4 December 2010

Overview of Session 1. The commissioners 'mandate' to conciliate harassment disputes. 2. Conciliating a harassment dispute, placing ourselves in an applicant's 'shoes' (including, being aware of, and sensitive to, our own inherent prejudices.) 3. Best practice approaches.

Constitution of the RSA, Act 108 of 1996 Equality Section 9 (4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

Subsection 9 (3) includes: race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

Employment Equity Act, 55 of 1998 Prohibition of unfair discrimination Section 6 (1) No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth.

Section 6 (3) Harassment of an employee is a form of unfair discrimination and is prohibited on any one, or a combination of grounds of unfair discrimination listed in subsection (1).

AN APPLICANT’S STORY

An Applicant’s Story What were your observations about what happened: - At the front desk? - At the conciliation process? What could have been done differently?

Best practice approach - from 'front desk' to conciliation Front desk - Have designated CMO's deal with discrimination matters. (Key attributes to include; respect, non-judgmentalism and empathy)‏. - Ensure a dedicated private place to talk without interruptions. - Elicit relevant information from the applicant in a sensitive manner.

Front desk continued -Create a safe supportive environment, put the complainant at ease. -Ensure confidentiality. -Create a resource pack to give to applicants.

Best practice approach - from 'front desk' to conciliation Conciliation -Provide designated commissioners to deal with non-judgmentalism, empathy, trustworthiness, respect, patience and creativity). -Ensure that discussions take place in a safe supportive environment. (Effective use of separate meetings and side- caucuses)‏. -Do not allow the harassment to continue in the process.

Conciliation continued -The applicant may have heightened levels of anxiety – it may thus not be appropriate to adopt a legalistic approach to conciliating these disputes. - Ensure confidentiality. -Commissioners to be aware of, and sensitive to own inherent prejudices.

Conciliation continued -80% of communication is non-verbal. Be sensitive to your body language. -Do not leave the parties alone.

Further matters to consider when setting up the conciliation - The gender and race of the conciliator. - The venue for the conciliation.

Conclusion 1. Our 'mandate' to conciliate harassment disputes is derived from: - The Constitution & - The Employment Equity Act 2. The story of an applicant. 3. Best practice approaches to conciliating harassment disputes.

Social Justice within the context of the CCMA “...I want to say therefore that we need to see our work in the CCMA not in isolation, not as people each of us resolving a separate dispute and making things right in relation to a particular dispute.

Social Justice within the context of the CCMA What we are doing is participating in the constitutional project with each dispute that we satisfactorily resolve, with each dispute which we ensure is appropriately managed, appropriately handled,...

Social Justice within the context of the CCMA...with each case with which we treat both sides with respect and care, with each case with which we try to ensure that the power imbalance is appropriately resolved we make a contribution to the broader constitutional project.

Social Justice within the context of the CCMA We make a contribution to the very survival of our society...” Justice Yacoob - Constitutional Court Speech delivered to CCMA CPD Seminar, December 2006.