When a matter is referred to the CCMA and is set down for conciliation, the conciliating commissioner will encourage the parties to settle the dispute with a view to bringing the matter to finality.  If settlement is reached, the commissioner will assist the parties by preparing a written settlement agreement which is usually signed at the CCMA in the presence of the commissioner.

The Labour Court, in a recent judgment of Cindi v CCMA & 2 Others was required to assess the role a commissioner plays in facilitating a settlement agreement at the CCMA.  In this case, an employee referred an alleged unfair dismissal to the CCMA. During conciliation, the commissioner informed the employee that she had no prospects of success and that she should rather settle the matter.  As a consequence of the commissioner's comments, the employee agreed to sign a settlement agreement at the CCMA.

It was some time after the employee signed the settlement agreement that she had second thoughts and was no longer happy with the outcome of the process.  The employee then approached the Labour Court with an application to review and set aside the settlement agreement in that she was of the opinion that the commissioner:

  1. was impartial;
  2. inappropriately persuaded her to sign the settlement agreement;
  3. unduly influenced her to sign the agreement; and
  4. exceeded his powers by giving her advice on the fairness of her dismissal.

The Labour Court, for the following reasons, refused to review and set aside the settlement agreement:

  1. The settlement agreement was not made an arbitration award and as such, could not be reviewed.
  2. A commissioner merely facilitates a settlement agreement and has no decision-making powers.
  3. A settlement agreement does not constitute a ruling or decision made by a commissioner.
  4. The role of a commissioner, through conciliation, is to procure an offer from the company that will ultimately be acceptable to the employee.
  5. The final decision to conclude a settlement agreement lies solely in the respective party's hands and is not the commissioner's decision.