What does arbitration entail

What can an employer expect if a dispute is referred to arbitration at the Commission for Conciliation, Mediation and Arbitration (CCMA) or at a Bargaining Council?

Availability

Once the CCMA (or Bargaining Council where applicable) issues an arbitration date, the first step is to make yourself as an employer available to attend the proceedings on the specified date. If the employer does not do this, there is a high possibility that a finding and order will be made against the employer.

Availability further entails that any and all relevant witnesses must be made available on the arbitration date. Thorough preparation is essential so that witnesses can provide the correct and relevant information to the CCMA or Bargaining Council.

Arbitration is a formal process

Arbitration is a formal process during which both the applicant and respondent (employer) must present their case in full to the commissioner as arbitrator. This entails that each party will be given the opportunity to address the commissioner in order to provide all relevant and applicable information, submit evidence in support of the case, and call witnesses. In the event of an unfair dismissal dispute, the employer must therefore be able to prove and defend the fairness of the dismissal.

Preparation

Early preparation is of utmost importance to ensure that all relevant information, documentation and witnesses are available during the arbitration. When there are documents that will be relied upon during the arbitration, copies must be made available to the commissioner, the opposing party, as well as any witnesses. Bundles must therefore be prepared which contain an index and are numbered. Bundles may be requested and provided by the parties in advance, alternatively they may be exchanged during the arbitration.

Witnesses

Use only witnesses that are relevant to the case. Witnesses who cannot make a contribution to the dispute and whose testimony is not relevant, must be avoided. Only a witness who really has the relevant information and knowledge to the case should be called during arbitration to support the case. Therefore, it must be determined in advance what information is required during arbitration and which witnesses can provide this information. Preparation with the witnesses is also an important aspect.

Cross-examination

The commissioner also has the right to address any questions to the parties in order to clear up any ambiguities.

Finding and order

After both parties’ case is concluded, the matter rests with the commissioner as arbitrator to make a finding and order.  The arbitrator will therefore provide a written order to both parties within 14 days of the case’s conclusion. The order is final and binding and both parties are bound by it.

Employers must ensure that they are fully prepared for arbitration and that preparation takes place early. Contact the LWO Employers Organisation for any assistance or advice with CCMA matters.

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