Section 188A of the LRA makes it possible to refer a dispute that involves a dismissal to the CCMA and Bargaining Council before the dismissal actually occurs. This procedure is known as a pre-dismissal arbitration and is a combination of a disciplinary hearing and an arbitration. An Employer may approach the CCMA, bargaining council or accredited agency to conduct the pre-dismissal arbitration. In the pre-dismissal arbitration procedure the employer does not do the disciplinary hearing or an enquiry as stated in Schedule 8 of the LRA. The Arbitrator fulfils this task while taking full note of the employer’s disciplinary code and/or code of conduct. The difference is that the finding and/or sanction of the disciplinary hearing is in the form of an Arbitration Award. All other procedures are the same as in a disciplinary hearing with the difference that the commissioner may hear evidence under oath, while a chairperson in a disciplinary does not have such powers.

A pre-dismissal arbitration can only occur where there is allegation that the employee has committed misconduct or that the employees performance is poor and the employee has been duly notified. The employer must believe or deem that a dismissal could be the outcome.

The employee cannot be forced to take part in a pre-dismissal arbitration and an employee must consent thereto. Employees that earn less than the statutory minimum currently set at R 205 433.30 a year can consent to the procedure by signing the form that is submitted to the CCMA ( LRA form 7.19). This is commonly known as “specific consent”. Employees that earn more than the statutory minimum can consent to the procedure in their contract of employment. This is known commonly known as general or “blanket” consent.

An employer must pay the CCMA or bargaining council or accredited agency a sum of R3000.00 per day to conduct the hearing.

The arbitrator has the same powers that he/she has when conducting a normal arbitration. After the hearing the arbitrator will make an award, which is final and binding on all parties involved. This document will constitute a public document and may be shared with 3rd parties to read and take cognisance of the findings.

The advantage of a pre-dismissal arbitration for employers is that issue or dispute will be resolved expeditiously and finally without the employer having to waste time and incur further costs by having to attend conciliation hearing and possibly an arbitration hearing. The employer will also avoid having to conduct and internal disciplinary hearing procedures.

The decision reached in terms of the section 188A may still be taken on review by either the employer or employee party.


Articly by: Alvin Alain Meyer

CEO Dispute Resolution Official – George