If a dispute is not resolved through Conciliation, a party may request the CCMA to resolve the dispute through Arbitration. Arbitration is a more formal process than Conciliation as it does not promote negotiations.
An arbitration is a hearing where a Commissioner gives both parties an opportunity to present their cases regarding the issue in dispute by leading evidence, presenting documents, cross-examination of witnesses, and even conducting the inspection of premises, where necessary. A Commissioner decides on the procedure to be followed, being mindful to ensure that the hearing is conducted with the minimum of legal formalities while ensuring that each party is given a fair opportunity to present their case.
A Commissioner will consider the fairness of an employer’s decision based on the evidence presented and submissions made at the Arbitration. The employer will have to prove that the employee’s dismissal was both procedurally and substantively fair.
At the end of the hearing, the Commissioner issues a written outcome on the dispute. The decision, called an Arbitration Award, is final and legally binding on both parties.
Should the Commissioner find that the employee’s dismissal was both procedurally and substantively fair, he will dismiss the case of the employee.
If the Commissioner finds that the dismissal of the employee was either procedurally or substantively or both procedurally and substantively unfair, the Commissioner can make one of the following awards:
- Reinstatement, which means putting an employee in the same position they were prior to dismissal.
- Re-employment, which means that an employee will be regarded as a new employee with a new employment contract.
- Compensation, which means a monetary award.
- Retrospective reinstatement, which means that the employee will return to work and also receive compensation from the date of his dismissal up until the date of the award.
Should you wish to read more about the difference between reinstatement and re-employment, you are more than welcome to read the article “Re-employment vs Reinstatement” by our Dispute Resolution Official, Thabo Mongale (https://ceosa.org.za/re-employment-versus-reinstatement/).
The Arbitration award is sent to the parties by the CCMA within fourteen (14) days of the finalisation of the Arbitration. This award can only be challenged through a review process in the Labour Court.
Article by: Arlene Jacobs
Dispute Resolution Official – Bloemfontein