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Arbitration: FAQs
What is arbitration at the CCMA?
Arbitration is a formal process where parties involved in a workplace dispute present their case before a CCMA commissioner, who acts as an impartial adjudicator.
The commissioner hears evidence, considers arguments, and issues a legally binding decision called an arbitration award. This award aims to resolve the dispute fairly and justly.
What are the time limits for referring a dispute to the CCMA?
For unfair dismissal cases, employees must refer the matter to the CCMA within 30 days of the dismissal date.
Failure to meet this deadline requires a condonation application, explaining the reasons for the delay and demonstrating a strong case.
If conciliation fails to resolve the dispute, the employee has 90 days to refer the dispute to arbitration. Employers should also be aware of these timeframes and raise any issues with timeous referrals.
Who can represent me at a CCMA arbitration?
Parties can represent themselves or be represented by: a legal practitioner, a director or employee of the company, a registered trade union member, or an employers' organisation representative.
However, legal representation in misconduct and incapacity dismissals requires consent from the commissioner and all parties involved.
The commissioner might grant permission considering the case's complexity and the parties' legal expertise.
Can legal representation be allowed in misconduct and incapacity dismissals?
While legal representation isn't automatically allowed in these cases, the commissioner can grant permission under certain circumstances.
These include: consent from all parties, the commissioner deeming it unreasonable for a party to proceed without legal representation due to the case's complexity or legal questions, and considering the public interest and the comparative ability of the parties to represent themselves.
What documents should I prepare for an arbitration hearing?
Essential documents include: the employment contract and any amendments, communication records (emails, letters, notices), company policies and procedures, performance records (reviews, targets), and financial records (payslips, bonus calculations).
Organise these documents chronologically and highlight key information that supports your case.
What happens at a pre-arbitration conference?
The pre-arbitration conference, either mandated by the CCMA or agreed upon by the parties, aims to streamline the arbitration process.
During this conference, parties clarify the issues, agree on common facts, exchange documents to be used as evidence, and identify areas of disagreement.
This process helps to focus the arbitration hearing on the core disputed matters.
What is the structure of an arbitration hearing?
The hearing typically begins with opening statements from both parties, outlining their case and what they aim to prove.
Evidence is then presented, often through witness testimonies and supporting documents. Cross-examination of witnesses allows parties to challenge the presented evidence.
Finally, closing arguments summarise the evidence and arguments presented, emphasizing each party's position and the desired outcome.
What happens after the arbitration hearing?
The commissioner issues a written arbitration award within 14 days of the hearing.
This award is final and binding unless reviewed by the Labour Court.
Parties dissatisfied with the outcome can apply for a review within six weeks of the award being issued.
The review process assesses whether the commissioner made any legal errors or exceeded their powers.
