An arbitrator must issue a written award with brief reasons within a time frame that allows the CCMA or a Bargaining Council to hand down the award within fourteen (14) days after the arbitration process.
It is helpful to know and understand the structure of such an award before heading into an arbitration. It allows one to prepare an argument that focuses on the facts the arbitrator will be interested in and ultimately consider when issuing the award.
In the Guidelines on Misconduct Arbitrations published by the CCMA, an arbitrator should organise an award along the following lines:
- the facts concerning the referral of the dispute
- any preliminary ruling and the reasons therefore
- the nature of the dispute
- background facts
- summary of the evidence
- analysis of the evidence
- conclusion on the fairness of the dismissal based on the analysis
- determination of the remedy, if applicable
- the order
There are three broad parts to the organisation of an award: the background facts, a summary of the evidence led, and the analysis of such evidence.
Background facts set the scene and contain facts that are “common cause” that may be important in analysis at a later stage. This includes the parties involved in the dispute, the nature of the workplace, procedures and agreements in the workplace, details regarding the employment relationship, a history of the dispute and the relief that the parties are seeking.
The summary of evidence part of the award records the relevant evidence led. It is usually a short description of the testimony of each witness that testified at the arbitration proceedings. Any relevant parts of documentary evidence that was present should also be summarised or quoted in this section.
The analysis of the evidence is a determination of the relevant facts for the purpose of coming to a decision regarding the fairness of the dismissal. Under this part of the award, the arbitrator must weigh the evidence led as a whole, considering the following factors:
- The probabilities: An arbitrator must consider the contending version and weigh up the evidence to determine which version is more probable. The factors for this determination must be identified and justified.
- The witnesses reliability: This includes an assessment of the extent of the witness’s first-hand knowledge of the events, any interest or bias the witness may have, any contradictions or inconsistencies, corroboration by other witnesses, the credibility and demeanour of the witness.
Article by: Ruaan Heunis
Dispute Resolution Official – East London