An arbitration hearing is a formal process, similar to a court case, in which the parties involved in a dispute present evidence and arguments to the Commissioner. The Commissioner records the hearing, and all witnesses are required to testify under oath or affirmation.

• In a dismissal dispute where it is agreed that the employee was dismissed, the employer will start by leading evidence. Thereafter, the employee may cross-examine (ask questions or make statements based on disagreement with the evidence presented) the employer’s witnesses. The employer can then re-examine those witnesses to clarify any potential misunderstanding. Once the employer has finished presenting evidence, it will be the employee’s turn to do so (followed by cross-examination and re-examination). 

• After both parties have provided their evidence, they may deliver their closing arguments. The purpose of closing statements is to allow the parties to influence the arbitrator’s decision in respect of fact or law. Arguments may be made to show where the evidence should be accepted or where the credibility of a witness was negatively affected. 

• After reviewing all the evidence and arguments, the Commissioner will apply the relevant legal principles to determine the outcome. The decision will be issued in the form of a written arbitration award, which is legally binding on both parties, similar to a court judgment.

• The arbitration process can take anywhere from a few hours to several days or even months to complete, depending on the complexity of the issues and the availability of the parties, their witnesses, and their representatives. It is also essential for both parties to remain open to conciliation and to be willing to try to resolve the matter amicably.

If a commissioner has certified that the dispute remains unresolved or if 30 days have expired since the Commission received the referral and the dispute remains unresolved, the Commission must arbitrate the dispute at the request of the employee if:

• The employee has alleged that the reason for the dismissal is related to misconduct or incapacity (medical or work performance).
  
  
• If the employee has been retrenched (if more than one employee was consulted with or retrenched, the dispute may be referred to the Labour Court, unless the employer employs fewer than ten employees).
  
  
• The employee has alleged that the reason for his / her resignation is that the employer made continued employment intolerable (also called constructive dismissal).
  
  
• The employer provided the employee with substantially less favourable conditions or circumstances at work after a transfer in terms of the LRA section 197 or 197A (transfer of contract of employment).
  
  
• The employee does not know the reason for dismissal.
  
  
• The dispute concerns an unfair labour practice (excluding a dispute related to a protected disclosure).
  
  
• The employee alleges unfair discrimination on the grounds of sexual harassment or earns below the BCEA section 6(3) threshold as determined by the Minister of Employment and Labour, or if both parties consent to arbitration.

The CCMA does not have jurisdiction (power) to arbitrate certain types of disputes (not a closed list) if:

• the employee has alleged that the reason for the dismissal is automatically unfair (see LRA Section 187 for list);
  
  
• the dismissal was based on the employer’s operational requirements, where more than one employee was retrenched and the employer employed more than 10 employees at the time;
  
  
• the employee’s dismissal was due to his / her participation in a strike that does not comply with the provisions of chapter 4;
  
  
• the employee was dismissed for refusing to join/was refused membership of / or was expelled from a trade union party to a closed shop agreement;
  
  
• the employee alleges unfair discrimination and earns above the BCEA Section 6(3) threshold as determined by the Minister, or if both parties do not consent to arbitration.
  
  

When a commissioner has issued a certificate stating that the dispute remains unresolved after Conciliation, it must be referred to Arbitration within 90 days after the date on which that certificate was issued. If your request for Arbitration is late, you may apply for Condonation, providing valid reasons for the delay.

The LRA 7.13 form (Request for Arbitration) may be completed online at https://cmsonline.ccma.org.za or downloaded from the CCMA website and emailed to the regional CCMA office (with a copy to the other party).

Your regional office of the CCMA decides where the hearing will take place or if it will take place online:

• In-person hearings are usually held in the same region (province or city) where the dispute arose, or
  
  
• where the employer’s primary business premises are located, unless the head office of the CCMA decides otherwise

There is no automatic right to an online hearing. The matter will proceed as scheduled unless the Commission or a Commissioner notifies the parties that the matter will be held online. You may apply to attend the hearing online by sending a written request to your regional CCMA office at least 10 days before the scheduled hearing date, ensuring that the other party is copied in, motivating your request by giving reasons, e.g.:

• you are physically unable to attend the hearing (you may have moved to a different province or city);
  
  
• you cannot afford the travelling costs since you became unemployed;
  
  
• you are medically incapable and can provide medical proof thereof.

After receiving your Request for Arbitration (the LRA 7.13 form), the CCMA will schedule your case to be heard as soon as possible.  You will be given a minimum of 21 days’ notice before the date of the Arbitration hearing. This is to ensure that you have sufficient time to prepare for the hearing (e.g., arranging witnesses and obtaining documentary evidence).

The parties may agree, or be instructed, to hold a pre-arbitration conference prior to the date of the scheduled arbitration hearing to try and reach consensus on, e.g. facts in dispute, facts agreed upon and the issues that the Commission is required to decide. Minutes of the pre-arbitration conference must be submitted to the CCMA at least 7 days prior to the date of the scheduled arbitration hearing.

If you have a valid reason for not being able to attend the scheduled arbitration hearing, you or your representative may request a postponement in writing to the CCMA (with a copy to the other party) at least 14 days prior to the hearing (a late application with an application for condonation may be considered).  If both parties agree to a postponement, the written agreement should be submitted to the CCMA at least 7 days prior to the hearing. The CCMA, or the Commissioner, may consider postponing the hearing to the next available date. The final decision lies with the CCMA or the commissioner.

If there are documents to be submitted as evidence (e.g. contract of employment, pay slips, dismissal letter, transcribed text messages, screenshots), you must provide three copies of each for the arbitration hearing (a copy for the Commissioner, the other party and for yourself). The pages must be numbered and bound together.

You may bring witnesses to the arbitration, who will be required to testify and be cross-questioned by the other party.  Your witnesses must be prepared in advance and be available to attend the hearing.

Voice notes or video footage, which you will use as evidence, must be saved on a new flash drive (USB) and presented to the Commissioner and will form part of your evidence bundle.

If your witnesses are unwilling to testify at the arbitration hearing, the CCMA has the authority to compel them to appear and provide testimony or information using a subpoena. To request a subpoena, you need to complete the LRA Form 7.16 (available for download on the CCMA website) and submit a written explanation detailing why the person(s) should be subpoenaed. This must be done at least 14 days before the scheduled date of the arbitration hearing.

In terms of CCMA Rule 25 (1) (b), a party to the dispute may appear in person or be represented only by:

• a legal practitioner or a candidate attorney; (**exceptions apply)
  
  
• if the party is an employer, a director or employee of the party and in addition, if it is a close corporation, a member of that close corporation; or
  
  
• any member of that party’s registered trade union or registered employers’ organisation or an office bearer or official as defined in the LRA; or
  
  
• if the party is a registered trade union, any member of that trade union or any office bearer or official as defined in the LRA and authorised to represent that party; or
  
  
• if the party is a registered employers’ organisation, any director or employee of an employer that is a member of the employers’ organisation or any official or office bearer as defined in the LRA and authorised to represent that party; or
  
  
• if the party is the Department of Employment and Labour, any employee or official of the Department of Employment and Labour.
  
  

**If the dispute being arbitrated is referred in terms of section 69(5), 73 or 73A of the BCEA or is about the fairness of a dismissal based on misconduct or incapacity, a party is not entitled to be represented by a legal practitioner or a candidate attorney in the proceedings unless the commissioner-

• and all the other parties consent;
  
  
• concludes that it is unreasonable to expect a party to deal with the dispute without legal representation, after considering-
  
  
  • the nature of the questions of law raised by the dispute;
    
    
  • the complexity of the dispute;
    
    
  • the public interest; and
    
    
  • the comparative ability of the opposing parties or their representatives to deal with the dispute.
    
    
• A party may also apply to be represented at Arbitration by a person other than those listed above under certain circumstances (see CCMA Rule 25(6) for more information).

Commissioners are obliged to assist parties who are not experienced in labour disputes, and not represented during the arbitration hearing.

Failure to attend the hearing might lead to the Commissioner dismissing the case (if the applicant fails to attend) or the Commissioner hearing only one side of the dispute (if the applicant attends but the employer does not).

Fourteen (14) days after the conclusion of the Arbitration hearing, an arbitration award will be issued by the CCMA, which is final and binding on the parties. However, in some instances, the Commissioner may be granted an extension to the 14-day submission period.

Either party may apply to the CCMA to have an arbitration award varied or rescinded if there are grounds to show that the award was made in error, in the absence of any party (if good cause is shown), or if an ambiguity, error or omission exists, or as a result of a mistake common to the parties.

Furthermore, any party to the dispute who alleges a defect in the arbitration proceedings may apply to the Labour Court for the award to be set aside within six weeks of the date that the award was served on the applicant. Such defects are limited to the following-

• that the Commissioner allegedly committed misconduct in relation to the duties of the Commissioner as an arbitrator;
  
  
• the Commissioner allegedly committed a gross irregularity in the conduct of the arbitration proceedings;
  
  
• the Commissioner allegedly exceeded his or her powers; or
  
  
• that an award has allegedly been improperly obtained.

Should the employer fail to comply with the award, the employee may apply to have the award certified by the CCMA Director by completing a form LRA 7.18 (download from the CCMA website). A certified award for payment of money may be presented to the Sheriff of the Court for execution if payment is not made. The party must provide the physical address of the party at fault for execution by the Sheriff.  

An award ordering reinstatement or re-employment may be enforced by way of contempt proceedings instituted in the Labour Court.  It does not need to be made an order of court before contempt of proceedings can be instituted.