An arbitration is, in essence, the make-or-break process of a dispute. Parties need to ensure that they come fully prepared for arbitration and that all witnesses and relevant evidence proving their case are available.

The nature of a dispute will ultimately dictate precisely what needs to be prepared for an arbitration. For purposes of this article, we will consider an unfair dismissal, which is, in all probability, the most common dispute which arises.

By now, we know that to prove a dismissal of an employee is fair, employers need to prove that the dismissal was both substantively and procedurally fair. These are two different aspects, and the evidence or testimony required to prove that these aspects were complied with will often stem from various sources.

Parties should make use of a pre-arbitration process to engage with each other and to establish precisely what is in dispute pertaining to the dismissal at hand. If it is alleged that the procedure is in dispute, what aspect related to the procedure is in dispute? Perhaps the Applicant alleges that they were not given sufficient notice to prepare for the hearing or were not afforded the opportunity to call witnesses.

In terms of preparation, the respondent now knows that they need to produce the notice of hearing at the arbitration. The chairperson who conducted the disciplinary hearing should be available to testify pertaining to the claim that witnesses were not allowed to be called by the applicant.

The above example is purely that, an example. Arbitrations, specifically the disputes leading to them, need to be dealt with on their own individual merits. Thorough preparation needs to be done leading up to the arbitration to establish what is in dispute so that when the arbitration itself begins, parties know exactly what the points of contention are.

Of course, it will not always be possible to have a pre-arbitration meeting, and parties may be unsure as to what is or is not in dispute. In such scenarios, it is always better to be over-prepared. Even if procedural fairness may not be in dispute, it is advisable that the necessary individuals who can testify pertaining to this are at least on “standby” should it become apparent that there is indeed an issue relating to it, and evidence should be led.

In summation, a party must be prepared to argue on the issues in dispute. All evidence, whether documentary, video, or witness testimony that will support a particular party’s case, needs to be available at the CCMA for the arbitrator to consider.

Article by: Wesley Field
Provincial Manager – Bloemfontein