With the amendments of the LRA, section 188A came into effect. This is unlike a normal arbitration at the CCMA where conciliation has failed and a certificate issued. This process is intended to take the place of a disciplinary enquiry and subsequent proceedings, which are heard by the CCMA. An employer may, by agreement with the employee, request the CCMA or council to conduct this arbitration if it relates to the conduct or capacity of that employee.
- The employer must inform the employee of the allegations of misconduct or incapacity.
- The employer must complete the 7.19 form. It is important to note that the employee must agree to this process or where an employee earns more than R183 008.00 per year, has agreed to it in terms of his contact of employment.
- The employee must sign the form to show that the employee has agreed to the process.
- The employer is responsible to ensure that payment is made to the CCMA by either a bank guaranteed cheque or by direct electronic payment. Proof of payment must be attached to the form.The cost can be obtained from the CCMA offices.
- A copy of the form must be given to the employee.
- The employer must submit the form to the CCMA by hand delivery, registered mail or by fax.
- Within 21 days after receiving the form and proof of payment, the CCMA must give 14 days notice of the hearing date to both parties.
Note: Fees will only be refunded if the CCMA is notified that the matter has been resolved before the CCMA has scheduled the hearing.
The parties may appear in person or be represented in terms of section 188A(5) by the following-
- a co-employee,
- a director or employee – if the party is a juristic person,
- any member, office bearer or official of that party’s registered trade union or registered employers’ organisation, and
- a legal practitioner, only by agreement between the parties.
General provisions of pre-dismissal arbitrations
The same provisions, which apply to arbitration proceedings, apply to pre-dismissal arbitrations. These are set out in section 138 of the LRA. Briefly, they are the following:
- The arbitrator may conduct the hearing in a manner considered appropriate to determine the dispute fairly and quickly, taking into account the substantial merits of the dispute must be dealt with the minimum of legal formalities.
- The arbitrator has the discretion to determine the appropriate form of the hearing.
- A party may give evidence, call witnesses, question witnesses of the other party and address concluding arguments to the arbitrator.
- If the parties agree, the arbitrator may suspend the pre-arbitration hearing and try to resolve the dispute through conciliation.
- If the employee party fails to attend, the arbitrator may proceed with the pre-dismissal arbitration in his / her absence or may adjourn the proceedings.
- Any codes of good practice of NEDLAC or published CCMA guidelines must be taken into account, if relevant to the dispute.
- The arbitrator must furnish an award within 14 days after the hearing that contains reasons for the decision. A copy must be served on each party (the director of the CCMA may extend the 14-day period on good cause shown). The award is final and binding on both parties and it may be made an order of court.