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Guidelines for CCMA commissioners: Misconduct dismissal arbitrations

Melanie Hart

The Commission for Conciliation, Mediation and Arbitration (CCMA) has published new guidelines on misconduct arbitration. The guidelines are aimed at streamlining the arbitration process to ensure arbitrators are consistent when they make decisions.

Conducting arbitration proceedings

An arbitrator can decide how the arbitration proceedings, which he is presiding over, will be conducted. However, the approach he chooses for these proceedings must ensure that the dispute is resolved in a speedy and fair manner.

The arbitrator must keep these four pointers in mind when he decides how to conduct a particular arbitration:

  • How complex the legal or factual matters in the case are;

  • What the parties’ attitude to the form of the proceedings is;

  • If the parties have legal representation; and

  • If the parties have previously appeared at arbitrations.

Remember that arbitration proceedings are not mere reviews of the employer's decision. Rather, they are new hearings where the fairness of the employer's decision is assessed on the basis of the evidence that has been placed before the arbitrator. This was demonstrated in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (2008 (2) SA 24 (CC)). In this case, the court held that the decision to dismiss lies with the employer but the arbitrator determines if that dismissal is fair. Consequently, you must rigorously consider what evidence will be placed before the arbitrator and which witnesses will be called to testify.

In the guidelines, there are six stages of the arbitration process. Before the arbitration starts, the arbitrator addresses certain preliminary issues, e.g. jurisdiction and evidence discovery, before addressing the substance of the dispute. Although the arbitrator must establish if the CCMA has jurisdiction to hear the case, the employee must ensure that the CCMA has jurisdiction to hear his case – before he even applies to the CCMA.

Author: Melanie Hart is a director of Employment at Cliffe Dekker Hofmeyr.