PREPARATORY STEPS FOR ARBITRATION
The following suggestions are made to assist respondents to prepare for arbitration in a way that facilitates effective dispute resolution. It is also aimed at preventing inappropriate and unnecessary disputes being brought to the CCMA. CCMA Rules on its practices and procedures, issued in terms of S115 (2)(a) of the Labour Relations Act 66 of 1995 (the LRA), are available and should be referred to for further information.
In principle some of the preparatory steps for conciliation also apply to arbitration, including - appropriate representation, being suitably prepared, avoiding postponements, and dealing with any preliminary / jurisdictional issues in advance.
An arbitration 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 based on the evidence presented and submissions made at the arbitration.
Section 138 of the LRA provides that-
- A commissioner may conduct an arbitration in a manner that he/she considers appropriate in order to determine the dispute fairly and quickly but must deal with the substantial merits of the dispute with the minimum of legal formalities.
- Subject to the discretion of the commissioner as to the appropriate form of the proceedings, a party to the dispute may give evidence, call witnesses, question the witnesses of the other party, and address concluding arguments to the commissioner.
Be open to settlement through conciliation - conciliation may still take place during the arbitration process, subject to willingness of the parties, as settlement through conciliation is a desirable option that ensures finalization of the dispute on terms agreed to by the parties.
Prepare submissions and forward statement of case. In appropriate circumstances, for example in complex disputes, the CCMA may order parties to file their statements of case that set out the material facts upon which the party relies and the legal issues that arise from the material facts. The statement of case should thus give information on the nature of the dispute, what is admitted and denied, and the evidence intended to be led. The statement of case must be delivered within the time-period set by the CCMA or the commissioner. The other party will then have an opportunity to respond to the statement of case by delivering what is known as an answering statement.
Preparation for arbitration should be linked to a consideration of the issues in dispute as contained in the referral form. It is important to compile all relevant documents that would be necessary in the determination of the dispute, including minutes of a disciplinary hearings, and make copies for the arbitrator and the applicant. Ensure submissions are bundled, numbered, clear and concise.
Hold a pre-arbitration conference - The Provincial Senior Commissioner, the Regional Senior Commissioner, or the presiding Commissioner may order the parties to hold a pre-arbitration conference or the parties may do so by agreement. This applies in matters where both parties are represented by a trade union, an employers’ organisation, a legal practitioner and/or a candidate attorney. In a pre-arbitration conference, the parties must try to agree on the issues specified in Rule 20(3) and file a minute signed by both parties setting out the facts on which the parties agreed or disagreed.
Where the parties agree to hold the pre-trial conference, it must be held at least fourteen (14) days before the scheduled arbitration hearing and deliver a copy of the minute of the pre-trial conference to the appointed Commissioner seven (7) days before the date of the arbitration hearing
Bring appropriate witnesses - ensure that appropriate witnesses are prepared and ready for the hearing, but avoid bringing unnecessary witnesses. Assist, where necessary, in enabling the applicant's witnesses to attend the hearing. For example, an applicant may wish to call a former fellow employee as a witness and this person may be at work and not authorized to leave. In circumstances where persons identified as witnesses are not willing to attend the arbitration of their own free will, an option is available that a party wishing to call that witness may apply to the CCMA to issue a subpoena to cause that witness to attend. This option must be considered carefully and be used when it is absolutely necessary as there are costs likely to be incurred by the party requesting the issuing of a subpoena as well as a risk that a witness forced to attend proceedings might not be co-operative.
Ensure appropriate representation – In an arbitration hearing a party in dispute 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 LRA, of a registered federation of trade unions or registered federation of employers’ organisation;
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.
In addition, Rule 25(6) allows for an application to be made by a party to allow a person, other than those referred to above, to represent a party at arbitration proceedings. The grounds for such an application are set out in Rule 25(6)(a) – (f) and need to be carefully motivated. No person representing a party before the CCMA, other than a legal practitioner or a candidate attorney, may charge a fee or receive a financial benefit for agreeing to represent that party.
Onus in dismissal disputes
Section 192 of the LRA provides that:
- In any proceedings concerning any dismissal, the employee must establish the existence of a dismissal.
- If the existence of the dismissal is established, the employer must prove that the dismissal is fair.
Order for payment of costs and / or arbitration fees
The Commissioner may order a party to pay costs to the other party according to requirements of law and fairness.
If a party is not represented by a legal practitioner or candidate attorney, the Commissioner may order the other party to pay the reasonable disbursements actually incurred of that party.
Legal fees may only be awarded if both parties were represented by a legal practitioner or candidate attorney.
Legal fees of R7000.00 (VAT inclusive) for the first day and R4700.00 (VAT inclusive) for each additional day of arbitration may be awarded. An award for costs in respect of a candidate attorney must be 50 percent of the amount set payable to a legal representative (see CCMA Rule 39 (5).
An arbitrator can decide whether or not to order an arbitration fee in matters where the dismissal is only procedurally unfair. This fee is set out in the Commission’s Tariff of Fees and is payable by the employer within fourteen (14) days of receipt of the award ordering payment of such a fee. Payment may be made by a bank guaranteed cheque, delivered to any of the CCMA’s offices, or by electronic transfer into the bank account of the CCMA.