Arbitration

What Is A Pre-Dismissal Arbitration?

When thinking of the CCMA, one immediately thinks of a dismissed employee lodging a complaint against their former employer. There are, however, many other services provided for by the CCMA that are not as well known or as popular.   An example hereof is a section 188A (LRA) process, Inquiry by an Arbitrator, also sometimes [...]

2020-12-14T15:19:52+02:00December 14th, 2020|Arbitration|Comments Off on What Is A Pre-Dismissal Arbitration?

I was absent at the Arbitration Proceedings, what now?

It is crucial for both parties to a dispute to receive notice to attend the matter in order for the parties to defend their case on the date set down by the Commission for Conciliation, Mediation and Arbitration (hereinafter referred to as the CCMA).   As soon as an employee decides to refer a matter [...]

2020-12-01T15:22:10+02:00December 1st, 2020|Arbitration|Comments Off on I was absent at the Arbitration Proceedings, what now?

Conduct of a Commissioner: “The helping hand” principle

Many employees who appear before the CCMA or Bargaining Councils have little experience in labour disputes and have limited understanding of the legal principles and rules of evidence that are relevant.   The question of whether Commissioners are entitled and/or obliged to assist such parties in presenting their cases or whether intervention in such circumstances [...]

2020-10-28T09:02:18+02:00October 28th, 2020|Arbitration|1 Comment

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
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