The Labour Consultancy.
THIS week, Rael Solomon examines what happens when a dispute taken through the arbitration process.
Arbitration hearings are much more formal than for conciliation. The commissioner hearing the matter will make a decision which in most cases is final and binding. Permission to appeal a decision on arbitration is usually only granted if it can be shown that the commissioner was unfairly biased or incompetent. It is truly a WIN-LOSE situation.
In the spirit of the New Labour Relations Act the commissioner may revert to a conciliation mode during the arbitration process should it be believed that this would be helpful.
The parties are entitled to give evidence at the arbitration proceedings, call witnesses and question the other parties' witnesses. Statements and affidavits may be presented and heard.
In all cases a party may be represented by a co-employee or member or official of a bona-fide trade union, employer's organisation or a director if the employer party is a company. Where the arbitration relates to a matter other than to a dismissal for misconduct or incapacity, the party is entitled to legal representation.
The reason for not allowing legal representation is to allow for speedy resolution of cases and to keep the costs of litigation minimal. The whole issue of representation is a very thorny one, with employees, labour consultants, attorneys and employers all questioning the fairness. It must be stated that employees who have already lost their jobs have little else to lose in pursuing disputes to the CCMA even when there is a small chance of success. Employers on the other hand often have the perception they are in a lose-lose situation.
The proceedings are free to the parties and while the system of conciliation / arbitration at the CCMA was designed to even out the playing fields it has led to many employees using the proceedings to force employers to accede to unreasonable demands. Never the less the CCMA is achieving a remarkable success given the short time it has been in operation and the tremendous work loads.
The Arbitration Hearing
Where possible employees should get advice in preparing themselves to present their own case. It may be worth their while to join one of the many trade unions which have mushroomed over the past year or approach a labour attorney or consultant who may be prepared to work on a contingency basis - payment on results achieved - if consultation fees cannot be afforded.
The employee will be asked what is expected from the arbitration:
Witnesses should be available at the hearing and may be called during the process. Witnesses should write down their version of the events in question and the employee should be sure they are going to support the party who is calling them. Do not fabricate evidence - the commissioner will probably pick this up during the process.
Affidavits i.e. statements attested to by the witnesses in the presence of a commissioner of oaths should be obtained from supporting parties. This is often preferable to calling them as witnesses. There is a limited time available - 2 to 4 hours and the commissioners have heavy case loads. A well prepared efficiently presented case has a better chance of success than a rambling monologue.
Enumerate all the points you want to make, state them as briefly as possible and in chronological order. Don't let the pressure get to you and make sure you state all the factors in your favour. Make sure you have evidence to corroborate what you have to say.
The commissioner may caucus with the parties individually to help in reaching a decision. At the commissioner's discretion the proceedings may revert to a conciliation mode.
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