Guidelines on misconduct arbitration are needed for consistency

WHEN a dismissed employee wants to challenge the dismissal as being unfair, either on the grounds of improper procedure or the lack of merits, the employee would first try to settle the dispute or would have to rely on an external arbitrator to make a decision.

If the business falls under the jurisdiction of a bargaining council, then that bargaining council would convene and hear an arbitration. If there is no bargaining council then the dispute would default directly to the Commission for Conciliation Mediation and Arbitration.

Obviously, the parties have to firstly attempt a conciliation and if that fails a certificate will be issued by the adjudication body which will enable the applicant employee to go on to an arbitration.

The CCMA has issued a set of guidelines on how an arbitrator should conduct the arbitration proceedings. This conduct will outline how an arbitrator will evaluate evidence for the purposes of making an award and will also assess the procedural fairness of the dismissal, including an assessment of the substantive fairness of the dismissal.

Clearly, the CCMA wants to promote consistent decision-making in the arbitration dealing with dismissals for misconduct. It should be noted that both employees and employers cannot be represented by an attorney or a legal adviser at these proceedings, but they may be presented by their respective trade union and employers’ organisation. This is only given as a right if the trade union is registered and the employers’ organisation is likewise registered.

The CCMA trains its commissioners (arbitrators) extensively and these commissioners are obliged to interpret and apply the Labour Relations Act in accordance with the judicial decisions of the courts. The commissioners are enjoined to follow the most recent binding decision of the highest court dealing with that particular part of the law.

It is incredibly useful for any employee or his or her trade union to study these guidelines and to use them when preparing for arbitration. The arbitrators all follow the guidelines extensively and make sure that their decisions are fair and reasonable within the ambit of the guidelines. These guidelines are obviously subservient to the latest court judgments and in particular to the South African Constitution.

One of the basic tenets of our Labour Relations Act is a call to ensure that arbitrations are done in a simple manner as most of the litigants are unrepresented and the majority have little or no experience. The Act says that the disputes must be determined fairly and quickly with a minimum of legal formalities. The arbitrators try to avoid the technicalities and endeavour to get to the merits of the case as quickly as possible. The arbitrator will decide on the form of the arbitration and discuss this form with the parties prior to the commencement of the dispute.

Clearly, each party will be entitled to give evidence, call witnesses, question witnesses and address concluding arguments. Arbitrations are done on a minitrial basis without the formalities. The arbitrator must conduct him or herself impartially and there should be no perception of bias at all. Should an arbitrator conduct him or herself unfairly, this should be pointed out to the arbitrator with a request for an explanation. Despite the fact that there might have been a disciplinary inquiry held by the employer, the arbitration is in fact a new hearing.

All the evidence must be heard afresh before that same arbitrator. All the witnesses that came to the hearing must come to the arbitration if you’re going to want the evidence to be taken into account. An arbitrator can only rule on the evidence that is before him or her. It must be remembered that the arbitrator is not merely reviewing what took place at the company but he is hearing everything for the first time. The arbitrator obviously will refer to the previous hearing and will look at the evidence led there but will want to hear this afresh.

The arbitration will be structured in such a way as to include a discussion of all the preliminary issues and an introduction. Thereafter, the arbitrator might try to narrow the issues to see where the disagreement arises.

An arbitrator will try to determine how to get to the facts as quickly as possible and will require the parties to bring whatever evidence they have.

Finally, the parties will be given time at the end to argue in support of their version. They will explain what facts they rely on and why those facts should be believed. They will also explain what relief is sought or opposed and what legal principles or authorities they rely on.