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How to win a discipline matter at arbitration

Ivan Israelstam


Thousands of cases are lost at arbitration simply because the loser didn't bring his proof to the arbitration hearing. When I was an arbitrator, I frequently heard the employer or the employee say, while testifying, "If you want the proof I can tell you where to get it" or "Mr Smith will back me up if you want to call him" or "I didn't realise that you wouldn't believe me". The problem is that parties in an arbitration matter don't fully understand the rules of the game.

4 Things parties in an arbitration matter don't understand

1. It's not the arbitrator's job to ask for proof or to call witnesses.

2. Arbitrators aren't allowed to accept that a piece of testimony is the truth merely because he says so.

3. All arbitrators must follow the rules of procedure and principles of justice during the arbitration hearing. Most importantly, the arbitrator must base his findings primarily on the facts presented at the arbitration hearing, e.g. in a disciplinary matter.

4. It's not the arbitrator's job to bring the evidence or to show the evidence brought is proven fact. The arbitrator merely creates the environment in which the parties can present their evidence if they have brought it with them. In this sense, the arbitrator acts as a 'master of ceremonies'. In other words, he will manage the arbitration process.

5 steps in the arbitration process

  • Step #1: Each party makes opening statements, which outline what they intend to prove.
  • Step #2: The parties present their cases through witnesses, documents and other evidence. If the employer goes first, each time the employer's representative is finished questioning one of his witnesses, the employee has a right to cross-examine that witness.
  • Step #3: The arbitrator has the right to ask the witness questions, for clarity, and the employer is allowed to re-examine the witness but only about the issues raised during cross-examination.
  • Step #4: Once all the employer's witnesses have been heard, the employee presents his case according to the above-listed steps
  • Step #5: Each party presents a closing statement and the arbitrator adjourns to assess the evidence and to make the award.

You'll lose if you don't present adequate proof

In the case of NUM obo Shata vs East Rand Gold and Uranium (1998, 11 BALR 1430):

  • The arbitrator found that the employee's dismissal was fair because the employee hadn't proved there was good reason for his absence from work.
  • It wasn't good enough for the employee to state that such proof existed.

In NUM obo Ndoyiyana vs MCC Contractors (Pty) Ltd (2001, 11 BALR 1195):

  • The employee alleged that he had good reason for his absenteeism.
  • However, he didn't bring this evidence and lost the case.

In De Beer vs Joshua Doore (2003, 6 BALR 695):

  • The employee, De Beer, accused his employer of discipline in the form of constructive dismissal because the company didn't promote him.
  • The employer denied telling De Beer that he would be promoted and claimed that he had in fact been found to be unsuitable for the post in question. As the employer didn't bring proof of this it lost the case and was ordered to pay the employee compensation equal to nine months' remuneration.