Arbitration

If a dispute is not resolved through Conciliation, a party in dispute may request the CCMA to resolve the dispute by arbitration if it is one of those that can be arbitrated. See the separate section that deals with Conciliation for a full explanation on that. 

Labour legislations such as the Labour Relations Act (the LRA), and the Employment Equity Act (the EEA), the Basic Conditions of Employment Act (the BCEA), and the Skills Development Act (SDA), specify which dispute can be referred to arbitration or the Labour Court after a failed conciliation process remains unresolved.

A party has 90 days within which to refer that dispute to arbitration from the earlier of the date on which conciliation remains unresolved, or the 30-day conciliation period has expired. Failure to adhere to that timeframe will cause the referral to be late and for a condonation application to be required before that referral can be considered. See the separate section that deals with Condonation for a full explanation on that.

In some instances, the arbitration hearing may follow the conciliation hearing on the same day.  This is known as a con-arb (conciliation / arbitration) hearing. Con-arb hearings are compulsory for a dispute relating to the dismissal of an employee for any reason related to probation or an unfair labour practice relating to probation; a dispute relating to a compliance order referred to in terms of section 69(5) of the BCEA; or a claim for failure to pay any amount owing referred to in terms of section 73A of the BCEA.

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 of inspection of premises, where that is 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.

An arbitration hearing is a new hearing regarding the issue in dispute which led to challenged employer’s decision. A commissioner will consider the fairness of an employer’s decision on the evidence presented and submissions made at the arbitration. 

In an arbitration hearing a party in dispute may appear in person or be represented as follows:
a party may appear in person or be represented only by –

i) if the party is an employer, a director or employee of that party, or if it is close corporation, by a member of that close corporation;
ii) any member of that party’s registered trade union or employers’ organisation, or an office bearer or official as defined in the Labour Relations Act (LRA) or an office bearer or official, as defined in the Act, of a registered federation of trade unions or registered federation of employers’ organisations;
iii) if the party is a registered trade union, any member of that trade union, or an office bearer or official as defined in the LRA and authorised to represent that party or an office bearer or official, as defined by the Act, of a registered federation of trade unions and authorised to represent that party; or
iv) if the party is a registered employers’ organisation, any director or employee of an employer that is a member of that employers’ organisation or any official or office bearer, as defined in the LRA and authorised to represent that party or an office bearer or official, as defined by the Act, of a registered federation of employers’ organisations and authorised to represent that party.
 
A legal practitioner, a candidate attorney or an individual entitled to represent the party at conciliation is allowed to represent a party at arbitration, unless the dispute being arbitrated is about dismissal for misconduct, ill-health, or poor performance (incapacity), or is referred in terms of section 69(5), 73 or 73A of the BCEA. In such cases the parties and the Commissioner may agree to legal representation, or a party may apply to be represented following motivation on the basis of factors listed in Rule 25(1)(c). The Commissioner will then decide whether to allow for such representation. 

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. The arbitration award is sent to the parties by the CCMA within 14 days of the finalization of the arbitration. This award can only be challenged through a review process in the Labour Court (there are, however, instances where an award may be taken on appeal to the Labour Court such as with certain unfair discrimination disputes). See the separate section on Review for a full explanation on that. 

Pre-arbitration conference

Sometimes, particularly when the issues in dispute are complex, parties may agree to hold a pre-arbitration conference or may be directed to do so by the Director of the CCMA, a senior commissioner or commissioner presiding in that dispute.

The purpose of this conference is to allow the parties to exchange documents that they would be using in the arbitration, to agree on the status of such documents, to decided what evidence would be required, which witnesses would be called and what relief would be claimed. The parties would draft and sign a minute of the pre-arbitration conference for submission to the presiding commissioner. This minute is intended to narrow the issues, curtail unnecessary evidence, and focus the proceedings on the real issues for determination.