On 1 January 2012, the CCMA implemented Guidelines on Misconduct Arbitrations which seek to promote consistent decision making in arbitrations dealing with dismissals for misconduct.
How to conduct arbitration proceedings
Whilst arbitrators may determine the form of the arbitration, the parties must always be entitled to give evidence, call witnesses, question witnesses and address concluding arguments.
Even though an arbitration is a fresh hearing, an arbitrator may rely on the record of the internal disciplinary hearing insofar as it is admitted as evidence during the arbitration. An arbitrator may draw a positive inference if a witness’ evidence is consistent with the record of the internal disciplinary hearing or an adverse inference should the witness’ version be different.
The arbitration proceedings may be formally divided into six stages:
- preparation and introduction;
- the preliminary issues;
- narrowing the issues;
- the hearing of evidence;
- the concluding arguments; and
- the award.
During the preparation and introduction stage, the arbitrator welcomes the parties and advises them of a number of issues including the fact that the proceedings will be recorded, any interest that the arbitrator may have in the outcome of the matter, the language in which the proceedings will be conducted, if there is a need for interpretation, the rules of the proceedings, how to address the arbitrator, the powers of the arbitrator, the procedure to introduce documents into the proceedings and the requirement that if the evidence of a witness is disputed by a party, such party should put questions to the witness and put its version to the witness so that the witness has an opportunity to respond.
The arbitrator is also required to intervene in circumstances where it is evident that a party or its representative does not understand the nature of the proceedings and it is prejudicing the presentation of its case. The circumstances that would give rise to this intervention include when a party fails to lead evidence of their version under oath or affirmation, when a party fails to cross-examine the witness of the other party, or fails to put their version to those witnesses during cross-examination, or when a party changes its version of events or puts a new version during proceedings.
Preliminary issues stage
After the preparation and introduction stage, any preliminary issues may be canvassed. These include applications for condonation and objections to jurisdiction as well as applications dealing with legal representation, disclosure of documents or the recusal of the arbitrator. It is noteworthy that the arbitrator has a duty to confirm that the CCMA has jurisdiction to hear the dispute irrespective of whether the jurisdictional point is raised by either of the parties. The arbitrator is required to check that the parties to the dispute have been properly identified and if necessary correct the description of any party.
The arbitrator is required to decide any preliminary point before proceeding with the arbitration unless evidence is required to deal with a preliminary point and it is practicable to hear evidence on the merits at the same time. An application for legal representation is also to be considered at this stage of the proceedings. However, a party who does not apply for legal representation at the outset is not prevented from making such an application subsequently during the arbitration proceedings.
Narrowing issues stage
Thereafter, the parties are required to narrow the issues in dispute by reaching an agreement on the legal and factual issues involved in the case so as to expedite the hearing. Brief opening statements may be addressed at this point so that the parties are able to set out their approaches to the issues in dispute.
The arbitrator must ensure that the employee states whether or not procedural or substantive fairness, or both, are being challenged and what relief is being claimed. At this stage, the parties should indicate what documents they will be relying upon during the arbitration proceedings and the extent to which they will admit the documents of the other party as evidence.
The arbitrator should then secure and record an agreement from the parties which identifies the issues that are common cause, the issues in dispute as well as the issues that the arbitrator is required to decide in order to resolve the matter.
Thus process is a facilitated pre-arbitration meeting by the arbitrator. The parties are ordinarily required to convene pre-arbitration meetings prior to the hearing so as to expedite the matter. With the implementation of the guidelines to misconduct arbitrations, it is likely that most parties will in fact bypass the pre-arbitration process as set out in rule 20 of the rules for the conduct of proceedings at the CCMA.
After narrowing the issues, the arbitrator may proceed to hear the evidence of the parties. The arbitrator is required to advise the parties how the evidence is to be presented and tested. The arbitrator ought to decide whether or not the proceedings will be inquisitorial or adversarial. If the proceedings are inquisitorial the arbitrator is responsible for questioning witnesses and requesting the parties to produce documentary evidence. However, if the form of the proceedings is adversarial, the parties are primarily responsible for calling their witnesses and presenting their evidence. The inquisitorial option may be appropriate where one party is unrepresented. An arbitrator is also entitled to conduct the arbitration in a form that combines both the inquisitorial and adversarial styles.
While it is preferable for witnesses who are still to give evidence on behalf of one of the parties not to be in the hearing room, an arbitrator is required to advise the party whose witness is present in the room during the hearing that less weight may be attached to the evidence if the witness was present during the proceedings.
After the evidence of the parties has been heard, the parties are given an opportunity to argue their versions by addressing the arbitrator on what facts they rely on in support of their case, which facts should be believed or why those facts should be accepted as the more probable version, what relief is sought or opposed, and what legal principles or authority is being relied on. In more complex cases the arbitrator may allow the parties to file written arguments within seven days after the hearing.
The arbitrator is required to issue a written award with brief reasons within fourteen days after the finalisation of the arbitration proceedings. The arbitrator is required to arrange the arbitration award along the following lines:
- the facts concerning the referral of the dispute;
- any preliminary ruling and the reasons for the ruling;
- the nature of the dispute;
- the background facts;
- a summary of the evidence;
- an analysis of the evidence;
- a conclusion on the fairness of the dismissal based on the above analysis;
- an analysis and determination of the remedy; and
- the order.
It is under the heading of analysis of evidence that the arbitrator is required to determine the relevant facts for the purposes of coming to a decision regarding the procedural and substantive fairness of the dismissal. It also involves an assessment of credibility and the probabilities and an assessment of the applicable rules in the light of those findings.
Arbitrators are required to have regard to item 4 of schedule 8 of the Code of Good Practice: Dismissal (the Code) of the Labour Relations Act, 1995 when deciding whether a dismissal was procedurally fair. Additionally, the arbitrator is required to have regard to the workplace disciplinary procedure, if one exists.
Item 4 of the Code contemplates an investigation that is flexible and informal. Thus, the fairness of an enquiry ought to be tested against the requirements listed in item 4, including whether the employer notified the employee of the allegations of misconduct using a form and language the employee can reasonably understand, whether the employee was allowed a reasonable time to prepare a response to the allegations, whether the employee was allowed the assistance of a trade union representative or fellow employee in preparing a response and in stating a case, whether an employee was given an opportunity to state a case in response to the allegations, and whether the decision was communicated to the employee in writing, together with reasons for such decision.
The only circumstances in which employers are entitled to dispense with these procedures, are in crisis cases where the employer acts to protect lives and property.
If there is a workplace disciplinary procedure, its legal status will affect the arbitrator’s approach when assessing the procedural fairness of a dismissal. Thus, in circumstances where there is a collective agreement, the Code is not a substitute for the collective agreement and the procedural fairness of the employee’s dismissal must be tested against the collective agreement and not the Code. Only where the collective agreement is silent on a specific issue required by the Code, will the Code play a roll.
Contractually binding procedures do not have the status of a collective agreement and ought to be tested against the Code. Any conflict should be decided in favour of the Code unless the employer is able to justify a departure. Similarly, when it comes to employer imposed procedures, these procedures ought to be tested against the Code and if there is any conflict, the Code takes precedence unless the employer is able to justify the departure.
Item 7 of the Code provides guidelines to Arbitrators for determining whether or not an employee has been dismissed for a fair reason. The arbitrator is required to determine the following: whether or not the employee contravened a rule or standard regulating conduct in the workplace, whether the employee was aware or could reasonably have been aware of the rule or standard, whether the rule or standard has been consistently applied by the employer and whether dismissal was an appropriate sanction for the contravention of the rule or standard.
If a dismissal is found to be substantively unfair, the arbitrator ought to consider whether or not to order the employer to reinstate, re-employ or compensate the employee. When considering whether or not an employer should reinstate or re-employ the employee, the arbitrator should consider whether or not the employee wishes to be reinstated or re-employed, whether a continued employment relationship would be intolerable and whether it would be reasonably practicable for the employer to reinstate or re-employ the employee.
When an arbitrator awards compensation, arbitrators must ensure that they have sufficient evidence to determine the amount of compensation. If the parties do not present that necessary evidence, the arbitrator must request the parties to provide additional evidence by way of oral or documentary evidence. Compensation for an unfairly dismissed employee must be determined with regard to the extent of the employee’s financial loss or the nature of the unfair dismissal.
An arbitrator is required to take the following into account when determining compensation for a substantively unfair dismissal: the employee’s remuneration and benefits at the time of the dismissal, the time that has lapsed since the dismissal, whether the employee has secured alternative employment, what steps the employee has taken to attempt to mitigate his/her losses, the financial loss suffered by the employee, the employee’s prospects of future employment, whether the employee failed to use the opportunity to state a case at the disciplinary investigation or enquiry, whether the resolution of the dispute was unreasonably delayed, whether the dismissal was both substantively and procedurally unfair, the extent of unfairness of the dismissal, payments received by the employee from the employer, whether the employee unreasonably refused an offer of reinstatement, whether the employee unreasonably refused other attempts by the employer to make substantial redress for the unfair dismissal, whether the conduct leading to the employee’s dismissal caused the employer financial loss and the employer’s financial position.
Similarly, an arbitrator who finds that a dismissal is procedurally unfair is required to determine whether an award of compensation is appropriate in light of the severity of the procedural unfairness. Compensation in circumstances of procedurally unfair dismissals is deemed to be a solatium (restitution) and is punitive of the employer to the extent that the employer breached the right to procedural fairness. When an arbitrator determines the appropriate amount of compensation, the arbitrator must take into account the extent or severity of the procedural irregularity together with the anxiety or hurt experienced by the employee as a result of the unfairness. An arbitrator who finds that a dismissal is procedurally unfair is entitled to charge the employer an arbitration fee, irrespective of the finding on substantive fairness. An arbitrator is also entitled to award costs if a party or a representative has acted in a frivolous or vexatious manner in processing a dispute or in the conduct of the arbitration proceedings.
Associate, Employment and labour