Arbitration

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

Burden of proof during arbitration proceedings dealing with dismissal cases

Ever wondered why the burden of proof shifts between the employer and the employee during dismissal arbitrations?   Section 192 of the Labour Relations Act No 66 of 1995 (as amended) stipulates the following: 1)         In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal; 2)         If the existence of [...]

2019-03-15T09:55:21+02:00March 15th, 2019|Arbitration|Comments Off on Burden of proof during arbitration proceedings dealing with dismissal cases

Can claims for statutory money be dealt with in Arbitration proceedings before the CCMA?

An Arbitrator could previously only hear a matter i.t.o Section 74(2) of the Basic Conditions of Employment Act (BCEA) before the CCMA for any outstanding monies, if an employee had instituted proceedings for unfair dismissal and the claim had not yet prescribed.   This meant that if an employee had a claim for solely statutory [...]

2019-01-25T10:27:44+02:00January 25th, 2019|Arbitration|Comments Off on Can claims for statutory money be dealt with in Arbitration proceedings before the CCMA?

The Enforcement of Arbitration Awards

When a dispute has been referred to the CCMA or Bargaining Council, and the matter proceeds to an arbitration hearing, the Commissioner will proceed to make the appropriate ruling and issue an arbitration award, against either the Applicant or Respondent, depending on the facts of the dispute.   Section 143 of the LRA (Labour Relations [...]

2018-10-19T11:58:54+02:00July 6th, 2018|Arbitration|Comments Off on The Enforcement of Arbitration Awards

Abandonment of Arbitration Proceedings

Section 138 (5) of the Labour Relations Act (as amended) stipulates that: “If a party to the dispute fails to appear in person or to be represented at the arbitration proceedings, and that party - (a) had referred the dispute to the Commission, the commissioner may dismiss the matter; or (b) had not referred the [...]

2018-05-02T14:35:55+02:00May 2nd, 2018|Arbitration, General|Comments Off on Abandonment of Arbitration Proceedings

Which party may apply for Arbitration?

When a dispute has been referred to conciliation only or to an objected con/arb process and the conciliation process has failed, the commissioner is duty bound to issue a certificate of non-resolution, confirming the dispute remains unresolved. With this document a party may refer the dispute to arbitration within 90 days by completing a 7.13 [...]

2018-01-25T16:26:08+02:00January 25th, 2018|Arbitration, General|Comments Off on Which party may apply for Arbitration?