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Ivan Israelstam
Previously I mentioned that the parties to a labour dispute had the option of referring the dispute to private arbitration. However, where the employee prefers to refer the matter to the CCMA, the employer has no choice but to accept this. But if they go this route, neither the employee nor the employer has any say as to which CCMA arbitrator will preside over their case. This means that they are taking pot luck as to who arbitrates the matter.
While the outcome of your case may vary depending on who your arbitrator is, all arbitrators are required to follow the same basic procedure during the arbitration hearing. The procedural guidelines laid down require the arbitrator to start off by explaining the arbitration process and rules. This entails explaining that: · opening statements are made by each party outlining what they intend to prove· the arbitrator could, for example, require the employer to present its case first. This will be done via witnesses, documents and other evidence· each time the employer’s representative is finished questioning one of his/her witnesses the employee has a right to cross examine that witness· the arbitrator has the right to ask the witness questions for clarity and the employer is allowed to re-examine the witness, but only regarding the issues raised during cross examination· once all the employer’s witnesses have been heard the employee presents his/her case according to the abovelisted steps.
After the arbitrator has explained this process and has followed it he/she must:
· Hear closing statements· Assess the evidence and make the award.
While the above procedural steps must be covered there are other steps which some arbitrators like to add in. For example, some arbitrators require the parties to provide formal papers containing the case arguments. lt is in any case advisable for the parties to prepare such papers and to utilise expert assistance in this preparation process. This is because such preparation not only helps the party to get ready for the arbitration but it also makes it far easier for the arbitrator to understand the party’s case.
A few arbitrators, in the interests of ensuring fairness and understanding, assist parties with the comprehension of the contents of the Act or with carrying out their roles of leading evidence. On the other hand, most arbitrators interpret their role purely as a neutral arbiter who has no authority to assist the parties.
As regards getting started with the process of opening arguments the arbitrator might logically be expected to require the referring party to present the first opening statement. However, the arbitrators may and do use their discretion in this regard. For example, where neither party is keen to open argument, the arbitrator might call on the party whose statement he/she believes will help the arbitrator to obtain the best initial grasp of the dispute.
Yet another area where arbitrators exercise discretion is that of representation of the parties by legal council or labour consultants. Some arbitrators appear to interpret the Act as limiting such representation whereas other arbitrators are comfortable with such representation and make positive use thereof in dealing with the more legalistic aspects of the dispute. Thus, while some arbitrators use up considerable time insisting that certain representatives leave the proceedings other arbitrators utilise such representation to facilitate the process.
Whereas some arbitrators have the experience and confidence to deal with “difficult parties” other arbitrators are more likely to utilise their powers of finding troublesome parties in contempt of the CCMA. lt is clearly not in the interests of parties to push an arbitrator this far. Should a party feel certain that an arbitrator is being unreasonable he/she should formally object, allow the proceedings to continue and take the arbitrator on review to the Labour Court later on if the circumstances really merit this.
Whereas the old lndustrial Court system developed substantial rules of evidence some arbitrators tend, in practice, to be flexible in this regard. For example, whereas a court may refuse to admit hearsay evidence at all, CCMA arbitrators appear to be willing to listen to all evidence. However, they do reserve and utilise the right to give less weight to evidence which is hearsay or which contravenes the rules of evidence.
Turning to the way in which CCMA arbitrators deal with awards I have noted that, in most cases, they comply with the provisions of section 138(7) requiring that a signed copy of the arbitration award be sent to each party within 14 days of the commencement of the arbitration proceedings. However, there have been many cases where this provision has not complied with.
The fact that the outcome of arbitration hearings can be affected by the individual styles of arbitrators and/or their differing interpretations of the law often makes it more difficult for parties to represent themselves. This is because parties normally do not have the legal knowledge, experience and skills to deal with unexpected decisions made by arbitrators. In such circumstances the use of expert representation becomes of paramount importance.
- Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on 082 852 2973 or on e-mail address:
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- Our thanks to Ivan and The Star newspaper for permission to publish this article.
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