Arbitration has been used for centuries to settle disputes, adjust differences, and resolve discord long before laws, courts, or judges were established or formulated.
Arbitration occurs when a dispute cannot be resolved through conciliation, a disputing party may request that the CCMA resolve it via arbitration if it falls within the CCMA’s arbitration program.
According to labour legislations such as the Labour Relations Act (LRA), Employment Equity Act (EEA), Basic Conditions of Employment Act (BCEA), and Skills Development Act (SDA), certain disputes can be referred to arbitration or the Labour Court following a failed conciliation process.
Arbitration may be requested by either party within 90 days following the earlier of the date on which the conciliation remains unresolved, or the date on which the 30-day conciliation period has expired.
In the event of a failure to adhere to that deadline, a condonation application will be required before the referral can be considered.
It is possible for the arbitration hearing to take place on the same day as the conciliation hearing.
Hearings such as these are called con-arb (conciliation / arbitration).
For disputes relating to dismissal of an employee on probation or unfair labour practices related to probation; claims for non-payment of any amount owing referred to in section 73A of the BCEA; or claims relating to compliance orders, con-arb hearings are compulsory.
Both parties have the opportunity to present their arguments during an arbitration hearing, through evidence, documents, cross-examination of witnesses, and even inspection of the premises, as necessary.
In determining how the hearing will proceed, commissioners are mindful to ensure that the hearing is conducted with the least amount of legal formalities while ensuring that each party has equal opportunity to present their case.
A new hearing concerning the issue in dispute that led to the employer’s decision being challenged is called an arbitration hearing.
Based on the evidence presented and submissions made at the arbitration, the commissioner will decide whether an employer’s decision was fair.
Parties in dispute may appear in person or be represented in an arbitration hearing as follows:
- i) if the party is an employer, a director or employee of that party, or if it is a close corporation, by a member of that close corporation;
- ii) In addition, any member of the party’s registered trade union or employers’ organization, or any office-bearer or official as defined in the Labour Relations Act (LRA), or any officer or official of a registered federation of trade unions or federation of employers’ organizations;
- iii) Any member of the party that is a registered trade union; or any office bearer or official as defined in the Labour Relations Act and authorized to represent the party; or any office bearer or official, as defined by the Act, of a registered federation of trade unions and authorized to represent the party; or
- iv) In the event that the party is a registered employer’s organization, any director or employee of the employer who is a member of that employer’s organization or any official, as defined in the LRA, authorized to represent that party or any official of a registered federation of employers’ organizations.
Parties to such a dispute may mutually agree to engage legal representation, or a party may apply for legal representation following consideration of factors listed in Rule 25(1)(c). The Commissioner will then decide whether such representation will be allowed.
The hearing commissioner issues a written decision regarding the dispute following the hearing. Both parties are legally bound by the decision, called an arbitration award. Within 14 days of finalizing the arbitration, the CCMA sends the arbitral award to the parties.
A review process in the Labour Court can be used to challenge this award (there may be instances where it will be upheld on appeal, such as in certain unfair discrimination disputes).
Pre-arbitration conference
In some cases, particularly when issues in dispute are complex, parties agree to hold a pre-arbitration conference or are directed to do so by the CCMA director, a senior commissioner or a commissioner presiding over the dispute.
The objective of the conference is to allow the parties to exchange documents that they will employ in the arbitration, to reach an agreement on the status of such documents, and to decide what evidence will be required, what witnesses will be called, and what relief will be sought.
A minute of the pre-arbitration conference was to be drafted and signed by the parties and submitted to the presiding commissioner.
The purpose of this minute is to narrow the issues, reduce irrelevant evidence, and center the proceedings on the actual issues for determination.
