Due to the high number of successful review applications, it would appear that the Commission for Conciliation, Mediation and Arbitration (CCMA) has finally been forced to formalise certain rules and procedures relating specifically to misconduct-related arbitrations (bearing in mind that more than 80% of cases referred to the CCMA, relate to misconduct).
These rules will formally come into effect on 1 January 2012, as published in Government Gazette number 34573 of 2 September 2011- for your ease of reference, I have attached the pdf file for download and later perusal, here
For those of us who have been conducting ourselves in this manner over the past 10 to 15 years, these guidelines could not have come too soon and this new development will most likely contribute positively to our overall arbitration experience (and massively reduce our stress levels and the number of review applications we have to serve and file becasue Commissioners have failed to properly apply their minds, or interpret legislation correctly, or even adhere to basic rules of evidence).
The main impact that these new guidelines will have on you, if you are involved in an arbitration, include:
Stricter Rules about ‘narrowing the issues’
Previously, conducting a pre-arbitration conference was not a requirement and parties had the choice of whether they wanted to use this provision to narrow issues, agree on documents and witnesses etc, or not.
With the new guidelines, the Commissioner is now required to ensure that the parties have established and agreed, amongst others, on issues that are common cause, facts that are in dispute, the relief being sought, as well as issues relating to bundles of documents, how evidence will be dealt with and the calling of witnesses.
Therefore, it may be in your best interests (and contribute to speeding up the process) to ensure that you conduct a proper pre-arbitration conference and that you the minutes of same, signed by both parties, to submit to the Commissioner on the first day of your arbitration.
Rules of Evidence
These new guidelines contain clear instructions to Commissioners, to bear in mind that the people appearing before them, are often not familiar with legal technicalities and, as such, Commissioners may determine the manner in which the arbitration is conducted.
There is clear instructions about leading witness testimony and a very clear prohibition on the asking of ‘leading questions’.
One disconcerting footnote that is published in these new guidelines, is the fact that Commissioners have the choice to now rely on ‘hearsay’ evidence if they believe same to be reliable.
Interpretations of the LRA Provisions and Code of Good Practice
At last, Commissioners are provided with much-needed clarity on issues such as procedural and substantive fairness and how to interpret the provisions of the LRA.
Their attention is specifically drawn to the principles of fairness and natural justice and they are very clearly informed that an ‘investigation’ into misconduct or a ‘hearing of the facts’ need not be a formal disciplinary enquiry, so long as the forum allows for both parties to be heard and specifically gives an employee the opportunity to state their case in response to the allegation(s) brought against them by their employer.
The new guidelines also contain information for Commissioners on how to deal with situations where there is no formal disciplinary code and practice, or where workplace rules are not expressly stated.
These new guidelines give Commissioners very clear instructions on how to draft their arbitration awards, what specific factors to take into account and then, under what circumstances they would be permitted to order re-instatement, re-employment, compensation or even cost orders.
By all accounts, these new guidelines are long overdue and will most definitely contribute to consistency of process and decision-making at the CCMA.
For you as a line manager, business owner, HR or ER Practitioner or employment law professional, the guidelines may well change the way that you prepare for and conduct arbitrations.
Discounted Training Workshop for Skills Universe Members!
Should you wish to learn more about these new CCMA Guidelines, we are conducting a one-day public workshop in Johannesburg on Wednesday, 16 May 2011 and in Cape Town on Friday, 18 May 2011.
We will be offering discount to skills universe members, so please send an e-mail directly to me firstname.lastname@example.org with the words ‘skills universe new arbitration rules workshop’ in the title.