What is an Arbitration?
After the Conciliation process has been concluded and parties were unable to find a possible resolution, the dispute will be referred to Arbitration. At the Arbitration hearing, the assigned Commissioner will then give both parties an opportunity to state their case in full. Once the Commissioner has heard both cases, he or she will then make a decision, which is called an Arbitration award, and is legally binding on both parties.
Once the Arbitration has been concluded, the Commissioner has 14 days from the date of Arbitration to make his or her written Arbitration award.
What takes place during an Arbitration?
The majority of the cases referred to the CCMA are as a result of dismissal of an employee due to misconduct. The onus is on the Employer (or better known as the Respondent) is to prove that the dismissal was both substantively and procedurally fair. In order to prove this, the Respondent will have to lead formal evidence by way of calling of witnesses who have direct knowledge about the misconduct. If the employee (or better known as the Applicant) disputes that the dismissal was procedurally fair in that he or she wasn’t given an opportunity to have a fair disciplinary hearing and put forward a defence, then the chairperson will be required to testify about the procedure followed before dismissing the said employee.
The Arbitration process can be likened to a court case. The process is recorded and all rules of Law are adhered to throughout the process. The witnesses lead formal evidence by way of examination-in-chief and then the other party can question the witness through cross-examination.
Once both parties have presented their case, the Commissioner will require oral or written closing arguments for final consideration before a decision is made.
The Commissioner’s role is to manage the flow of evidence during the Arbitration but not to bring the evidence. His or her duty is to collect the evidence brought by the parties and then adjourn the proceedings to evaluate the evidence and make a decision.
The Arbitration process can take a few hours or a number of days depending on the severity and complexity of the case.
If witnesses testified at the internal disciplinary enquiry, is it still necessary for their evidence to be led during the Arbitration?
Unfortunately, the witnesses will be required to testify again if their evidence is challenged. In Law we often say that the process will commence De Novo (meaning from the beginning or afresh). Before the arbitration date, the Respondent will access the evidence and determine which witnesses will need to be called to testify.
It is essential that all relevant witnesses are called and documentary evidence is also handed in as evidence in order for the Commissioner to make a proper decision.
If witnesses are not present on the day of the arbitration and the Respondent is unable to prove that the dismissal was substantially and procedurally fair, then it can result in an adverse Arbitration award.
Article by: Claire Turner
CEO Regional Manager – Durban