Arbitration is a more formal process than that of conciliation. It is during the arbitration stage that the entire case gets re-tried against the employee.
The Commissioner is not merely checking to see whether or not the outcome of the disciplinary hearing was correct he will review the entire case. The Commissioner must decide on both the substantive fairness and whether or not the employer followed the correct procedures
The Commissioner has discretion as to how he wants to conduct proceedings and he must deal with the substantive issues with a minimum of legal formalities.
Parties are allowed to give evidence, call witnesses, cross-examine and have closing arguments.
Postponements of arbitration hearings are only granted where there is compliance with CCMA rule 23, whereby:
- Both parties to the dispute agree in writing to the postponement; and
- The request is received by the CCMA 10 days prior to the hearing;
- The Application is done in terms of Rule 31 to postpone an Arbitration Hearing by delivering an application to the other parties to the dispute, and filing a copy with the Commission before the scheduled date of the arbitration.
The Commissioner will decide whether or not he will grant the request without convening a Hearing for a postponement or if he will convene a formal hearing.
After the entire case has been re-tried, the Commissioner must make a decision and inform the parties of his decision in the form of an Arbitration Award.
This award must be handed down within 14 days of the conclusion of the arbitration.
Representation at Arbitration
In terms of s138 (4), as contained in the transitional provisions (schedule 7 item 27) a party to the dispute may appear in person or be represented only by:
A legal practitioner;
A director or employee of the party; or
Any member, office-bearer or official of that partys registered trade union or registered employers organisation.
In cases where the dispute being arbitrated, relates to conduct or capacity, in terms of s140 (1) as contained in the transitional provisions (schedule 7 item 27) - the parties are not entitled to be represented by a legal practitioner in the arbitration proceedings unless:
The Commissioner and all other parties consent, the Commissioner concludes that it is unreasonable to expect a party to deal with the dispute without legal representation, after considering the following:
The nature of the questions of law raised by the dispute;
The complexity of the dispute;
The matter concerns the public interest; and
The comparative ability of the opposing parties or representatives to deal with the arbitration of the dispute.
Tip: an Advocate may only represent a party in a CCMA Hearing if briefed by a firm of attorneys. Failure to attend the Hearing might lead to the Commissioner dismissing the case.
By: Martin Vermaak, Attorney