For an arbitration award to be handed down by the CCMA or a Bargaining Council within fourteen (14) days after the arbitration process, the arbitrator is required to write a brief explanation of the reasons.
A good understanding of the structure of an arbitration award is helpful before you attend the hearing.
This technique enables one to formulate a response that is based on facts the arbitrator will be interested in and ultimately consider when giving an award.
A CCMA publication, the Guidelines on Misconduct Arbitration, states that an arbitrator should prepare an award in the manner that follows:
- the facts concerning the referral of the dispute
- any preliminary ruling and the reasons therefore
- the nature of the dispute
- background facts
- summary of the evidence
- analysis of the evidence
- conclusion on the fairness of the dismissal based on the analysis
- determination of the remedy, if applicable
- the order
An award is structured with three parts:
- background information,
- a summary of the evidence presented,
- an analysis of that evidence.
Background facts provide context and provide information that is a “common cause” and may be crucial to future analyses.
A dispute report will include:
- the names of the parties involved,
- the nature of the workplace,
- procedures and agreements in the workplace,
- the nature of the employment relationship,
- a history of the dispute, and
- the relief the parties seek.
As part of the award, there is a summary of the evidence that has been presented.
Typically, it is a short summary of the testimony of each witness who testified at the arbitration hearing.
The relevant portions of the documentary evidence should also be summarized or cited in this section.
During the evidence analysis, the relevant facts are determined for the purpose of determining whether the dismissal was fair.
An arbitrator must consider the evidence presented in this part of the award, taking the following factors into account:
The probabilities:
To determine which version is more likely, an arbitrator must consider the contending version and weigh up the evidence. Several factors must be considered and justified to make this determination.
The reliability of a witness:
Witnesses are evaluated for their first-hand knowledge of events, whether they have any bias or interest, any contradictions or inconsistencies, the credibility of the witness, and their demeanor.
