In a recent article, CEO’s Carl Ranger discussed what an arbitration entails. If you missed it, I would highly recommend giving it a read.

The arbitration process is utilised in order for all relevant parties to a dispute to give evidence. After which, a commissioner delivers an arbitration award.

The question then, which employers often ask, is, “Must I attend an arbitration?” This largely depends on the facts at hand and the specific merits of the matter which is being arbitrated.

At a disciplinary hearing for misconduct, an initiator will need to present evidence to persuade an impartial chairperson that a dismissal, for example, would be the appropriate sanction under the circumstances. A highly critical factor in justifying the dismissal of an employee is whether the trust relationship between the employer and employee has broken down irretrievably. To demonstrate this, it is often the case that an employer, during a disciplinary hearing, will testify that the trust relationship has completely broken down and that continued employment would be an impossibility.

Due to the fact that an arbitration is a hearing de novo, it becomes necessary for all witnesses and role-players who testified in a disciplinary hearing to avail themselves to testify at the arbitration*, to ensure that the Commissioner has all relevant testimony and evidence available to him or herself to issue a just arbitration award.

The short and safe answer to this question is that an employer should have all individuals, who were role-players in a disciplinary hearing, available to testify at the arbitration proceedings.

Parties can make use of pre-arbitration meetings to establish what is and is not in dispute and then narrow down the necessary witnesses.

*Each case should be dealt with based on its merits. Prior to the commencement of an arbitration, parties will place certain issues in dispute. It frequently happens that parties will agree on certain aspects pertaining to a dispute. In this scenario, there is no need for evidence to be led on that specific aspect, meaning that a particular witness who testified in a disciplinary hearing may not need to testify at an arbitration.

Article by: Wesley Field
Provincial Manager – Bloemfontein