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 [...]
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 [...]
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 [...]
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. [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]