CCMA guidelines on misconduct arbitration
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Arbitrators have to determine disputes fairly and quickly and try to deal with the merits of the dispute with a minimum of legal formalities, the writer says. Picture: Bongiwe Mchunu Arbitrators have to determine disputes fairly and quickly and try to deal with the merits of the dispute with a minimum of legal formalities, the writer says. Picture: Bongiwe Mchunu
The Commission for Conciliation, Mediation and Arbitration (CCMA) has listed guidelines on misconduct-arbitration. These guidelines are outlined in the Government Gazette and are followed by the CCMA and Bargaining Council commissioners in helping them to run arbitrations.
If an individual, trade union, employer or employers’ organisation is going to prosecute or defend an arbitration at one of the labour bodies, it would be worthwhile to not only carefully read these guidelines but also to get an overall understanding of what is required of the litigant.
These guidelines are followed unless an arbitrator can show good reason for a different interpretation. Arbitrators follow decisions of the courts and, in particular, will adhere to the decision of the highest court.
Although the guidelines are general in nature, arbitrators will ensure that their decisions are fair and reasonable in light of the specific circumstances of a particular case.
Arbitrators do not act like they are in a court room. They will determine the dispute fairly and quickly and try to deal with the merits of the dispute with a minimum of legal formalities. In essence, an arbitrator does not allow technicalities to prevent an outline of the real issue. The arbitrator will decide the form of the arbitration. It is very clear that an arbitration is a completely new hearing and all the evidence will be heard afresh.
The arbitrator will try to deal with the preliminary issues straight away and thereafter will ask the parties to try and narrow the differences. This is normally done at the time of opening statements.
The parties will exchange documents and will then have their witnesses ready to record evidence.
Each party will be able to record all its evidence through their actual witnesses and thereafter will allow the other party to test this evidence by cross examination. Witnesses cannot listen to other witnesses on the same side as them. After listening to the witnesses and the cross-examination, the parties will be able to sum up their case and to lead argument.
It is also very useful to have background facts at the litigants’ fingertips so as to ensure that the employment relationship and the history of the dispute including the relief sort is properly outlined.
Arbitrators request copies of the workplace disciplinary procedure and if there is none then they would default to the Code of Good Practice on Discipline as attached to the Labour Relations Act. In cases of misconduct, the employee is only allowed to have the assistance of a trade union representative or a fellow employee in preparing a response and then stating a case.
In cases of a disciplinary nature, legal representation or other external representation is not allowed. If there is a workplace disciplinary procedure, this procedure must be very carefully followed at the disciplinary hearing beforehand, otherwise this will give the employee a chance to challenge the procedural fairness of the dismissal.
It is incumbent on the employee to understand the workplace disciplinary procedure so that any problems can be specifically pointed out at the arbitration. If the disciplinary action is taken against the trade union representative, then the employer must inform and consult with the trade union before taking disciplinary action against the shop steward. The arbitrators have to make a determination on both the substantive and procedural fairness of the dismissal.
Arbitrators will enquire into the merits of the substantive fairness and will make some findings after hearing evidence about same. They will investigate whether the employee contravened a rule or standard regulating conduct in or relevant to the workplace.
If the rule or standard was contravened then they will look into the fact whether the rule was valid or reasonable and whether the employee was aware or could reasonably have been aware of the rule or standard.
It is also known that the arbitrator will investigate whether the rule or standard has been consistently applied by the employer and whether dismissal was an appropriate sanction.
The arbitrator will investigate each step and will answer the question, through evidence, whether the rule was in existence, whether it was fair, whether it was reasonable and whether the employee was aware of same.
If there is a contravention of that rule then the arbitrator will make a decision as to whether it is an appropriate sanction to dismiss.
* Michael Bagraim is a labour lawyer.
** The views expressed here are not necessarily those of Independent Media