The Labour Relations Act (the LRA), makes provision for employers to make use of the service of a CCMA commissioner to conduct a disciplinary hearing and make determinations on the appropriate action that should be taken against an employee in instances where there is an allegation of misconduct or incapacity against an employee.

For this to take place, there has to be an agreement between the employer and the employee, either arising from the contract of employment, a binding collective agreement or a specific agreement between the parties consenting to the referral of the matter for this inquiry. Once that agreement has been reached, it cannot be withdrawn unilaterally by one of the parties without the consent of the other. Where the agreement is once-off and does not arise from an employment contract or collective agreement, it must be shown that the employee consented to this referral after being advised of the misconduct or incapacity allegations against him/her.

The request for the inquiry must be filed by the employer by signing and filing the prescribed CCMA form and paying the necessary fees for this hearing. Also, where an employee alleges, in good faith, that charges of incapacity or misconduct brought against him/her are motivated by his/her having made certain Protected Disclosures that are protected by the Protected Disclosures Act 26 of 2000, that employee or the employer, may require that an inquiry by an arbitrator be conducted into allegations by the employer into the conduct or capacity of the employee. 

On confirmation of the administrative details, the CCMA will appoint an arbitrator and schedule the hearing.

This inquiry is regulated by section 138 and 142 of the LRA, the same rules that regulate arbitration proceedings at the CCMA. The appointed commissioner may conduct the arbitration in a manner that he/she considers appropriate to determine the dispute fairly and quickly and must deal with the substantial merits of the disputes with the minimum of legal formalities. The parties will be allowed to give evidence, call witnesses, cross-examine each other’s witnesses, and address concluding arguments at the conclusion of the process.

An employee party to the dispute may appear in person or be represented by a co-employee, an office bearer or official of that party’s Trade Union.

An employer party to the dispute may be represented by a director or its employee, or an office bearer or official of that party’s registered Employer’s Organisation.  

The parties may have legal representation by agreement or if permitted by the Arbitrator in accordance with the Rules regulating representation at an arbitration before the CCMA.

A commissioner will be required to issue a signed award, with brief reasons, in writing within 14 days of the finalization of the hearing.

The commissioner’s ruling has the same status as an award; it is final and binding on the parties and is not merely a recommendation. If the outcome of the inquiry is that the employee is dismissed, the employee may not refer the same dispute to the CCMA. Equally, if the outcome is that the employer has not proved that the employee committed the misconduct/ acts of incapacity, or if the conduct or capacity is found not to warrant dismissal, the employer cannot implement a different finding or overrule the finding of the arbitrator. A party that is not satisfied with the outcome can challenge that on review in the Labour Court. See the section on Review in this regard.

From the points above the following concluding remarks should be noted:

• this process can ensure that finality is reached soon after the matter is referred for an inquiry by arbitrator;
• a neutral outsider, the arbitrator, ensures impartial decision making;
• the costs associated with a hearing in the workplace as well as a hearing at arbitration are minimized;
• there is no appeal and the process and outcome are out of the hands of the parties;
• the parties are not able to choose who will arbitrate the dispute, although in more complicated matters, they may be able to request that a senior commissioner be appointed to hear the matter.