Arbitration

When can an Application for Rescission be brought by a party to the Proceedings?

In applications of this nature the fundamental question is whether the party to whom the award was made, has made a case as contemplated in section 144 of the Labour Relations Act, 1995, which allows for a commissioner to rescind, where an award: Was erroneously sought or erroneously made in the absence of any party [...]

2020-09-11T14:29:47+02:00September 11th, 2020|Arbitration|Comments Off on When can an Application for Rescission be brought by a party to the Proceedings?

I am unhappy with the Arbitration Award given, what now?

In terms of the Labour Relations Act 66 of 1995 (LRA), an arbitration award issued by a Commissioner is final and binding and may be enforced as if it were an order of the Labour Court.   The LRA does not allow any party to appeal against an arbitration award, but these awards can be [...]

2020-09-04T16:45:43+02:00September 4th, 2020|Arbitration|Comments Off on I am unhappy with the Arbitration Award given, what now?

Employer / Employee trust relationship; is it necessary to prove the breakdown at arbitration?

The trust relationship between employers and employee’s lies at the heart of any employment relationship. In deciding whether a sanction of a dismissal is appropriate, the question of the existence of the trust relationship must be canvassed at arbitration. It is trite law that if an employer can prove that the trust relationship has been [...]

2020-06-01T14:22:35+02:00June 1st, 2020|Arbitration|Comments Off on Employer / Employee trust relationship; is it necessary to prove the breakdown at arbitration?

What to do if an employer is not available to attend an arbitration on the scheduled date?

The CCMA is bound by its rules to notify parties in writing of an arbitration hearing at least 21 days prior to the scheduled date.   It could happen that an employer and/or key witnesses have prior engagements on the exact same date and time that the matter has been set down for arbitration.   [...]

2020-02-20T11:12:09+02:00February 20th, 2020|Arbitration|Comments Off on What to do if an employer is not available to attend an arbitration on the scheduled date?

To deal with an arbitration fairly, quickly and with a minimum of legal formalities does not give a commissioner the right to arbitrarily include or exclude evidence without a proper basis for doing so

In terms of section 138 of the Labour Relations Act no 66 of 1995, commissioners must “conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly but must deal with the substantial merits of the dispute with the minimum of legal formalities.”   Arbitration hearings [...]

2019-12-06T10:24:18+02:00December 6th, 2019|Arbitration|Comments Off on To deal with an arbitration fairly, quickly and with a minimum of legal formalities does not give a commissioner the right to arbitrarily include or exclude evidence without a proper basis for doing so

Does the “helping-hand principle” still apply in Arbitrations?

The “helping-hand principle” can be found in Clause 20 and 21 of the CCMA guidelines on misconduct arbitration.  The applicable sub-clauses can be summarised as follows:   Clause 20: “At the start of the arbitration, the arbitrator should welcome the parties and advise them of – … 20.9) the requirement that if evidence of a [...]

2019-09-13T09:06:12+02:00September 13th, 2019|Arbitration|Comments Off on Does the “helping-hand principle” still apply in Arbitrations?

New Rule relating to the Pre-Arbitration Conference

At the commencement of 2019, we saw the introduction of an updated set of Rules for the CCMA (Commission for Conciliation, Mediation and Arbitration). One of the rules which saw significant amendments was Rule 20 – “When must parties hold a Pre-Arbitration conference”. This article will only deal with the important amendments relating to Rule [...]

2019-08-12T10:49:46+02:00August 8th, 2019|Arbitration|4 Comments

CCMA Rule 31B: Application for compliance order to be made an arbitration award

Employers have been faced with a “BCEA Form 15” regarding an application for a compliance order to be made an arbitration award in terms of the New Minimum Wage Act and are unaware of what to do once a form of this nature has been received. In light of the new amendments to the Labour [...]

2019-07-26T08:51:57+02:00July 26th, 2019|Arbitration, Labour Relations Act|Comments Off on CCMA Rule 31B: Application for compliance order to be made an arbitration award

The de novo principle in Arbitration proceedings

Commissioners are entitled to conduct arbitration hearings in a manner that they consider appropriate in order to determine a dispute before them fairly and expeditiously.   Section 138 of the Labour Relations Act 66 of 1995 stipulates that the commissioner can use his/her discretion as to the manner in which he/she would like to conduct [...]

2019-05-24T10:07:05+02:00May 24th, 2019|Arbitration|Comments Off on The de novo principle in Arbitration proceedings

What to know when presenting evidence at an arbitration

We often get asked whether it is necessary to bring a witness along for an arbitration when the employer has a written statement or audio recording from their witness. The short answer is yes. Failure to bring a witness to testify will amount to hearsay evidence and will bring very little to zero support to [...]

2019-05-10T09:41:14+02:00May 10th, 2019|Arbitration|Comments Off on What to know when presenting evidence at an arbitration