In terms of Section 138(1) of the Labour Relations Act, a commissioner may conduct an arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly, with the minimum of legal formalities.

In the Guidelines on Misconduct Arbitrations published by the CCMA, it is stipulated that an arbitration typically involves six stages, as briefly explained hereunder.

Stage 1 – Preparation and Introduction

During this stage, the commissioner will explain to the parties the manner in which the arbitration will be heard. The commissioner will explain the rules of the proceedings, the role and power of the commissioner, the rights of both parties and how evidence should be presented.

Stage 2 – Preliminary Issues

Before proceeding to arbitration, any preliminary issues that may exist must be dealt with. This may include applications for condonation or legal representation as well as objections to the jurisdiction of the CCMA or bargaining council. The commissioner will generally ask parties whether there are any preliminary issues to be raised whereafter parties should be given an opportunity to address the preliminary issue. A ruling must be issued before the dispute can proceed to arbitration.

Stage 3 – Narrowing the issues in dispute

The purpose of this stage is to reach an agreement on the legal and factual issues involved which will arise out of the dispute. The commissioner must determine whether the substantive or procedural fairness is challenged. At the conclusion of this stage, the parties should record the issues that are common cause, the issues that are in dispute, and the issues that the commissioner is required to decide to resolve the dispute. Parties will also be given an opportunity to present an opening statement.

Stage 4 – Hearing of Evidence.

Both parties will now have the opportunity to present their case by calling witnesses and presenting documentary evidence. Parties will also be allowed to challenge evidence by way of cross-examining witnesses. The commissioner will ensure that testimony given by witnesses is recorded electronically and will take notes of the evidence, which must be kept in the file.

Stage 5 – Argument

Once evidence has been led, the parties will be given an opportunity to present a closing argument in support of their version of the dispute. Parties will be invited to address the commissioner on what facts they rely on in support of their case, why those facts should be believed or accepted as the more probable version, what relief is sought or opposed and what legal principles or authorities is relied on.

Stage 6 – The award

Once the evidence has been led, the commissioner must hand down a written award within 14 days after the arbitration is finalised. In the award, the commissioner will address the facts concerning the dispute, the nature of the dispute, background of the facts, a summary of the evidence led by parties, analysis of such evidence and will conclude in which party’s favour the award will be.

Article by: Ruaan Heunis
Dispute Resolution Official – East London