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Ivan Israelstam

 

Employers and employees very frequently lose their CCMA cases because they fail to bring proof of their allegations to the arbitration hearing. In the days when I arbitrated CCMA matters, parties argued their cases before me very vehemently, passionately and in great detail but often brought little or no support for their arguments. Then they were most surprised when they lost the case.
    
What parties do not understand is that:

  • Winning a case at arbitration is not primarily about how strongly you argue your case.
  • Arbitrators are not allowed to accept the truth of a party's testimony merely because the party says that it is true.
  • It is not up to the arbitrator to ask for proof or to call witnesses.

 

All arbitrators are required to follow the rules of procedure and principles of justice during the arbitration hearing. These requirements include the paramount principle that the arbitrator must base his/her findings primarily on the facts presented at the arbitration hearing.
     
It is not up to the arbitrator to bring the evidence or to show that the evidence brought constitutes proven fact. The arbitrator merely creates the environment in which the parties can present their evidence if they have brought it with them. In this sense the arbitrator acts as a master of ceremonies.
   
That is, he/she manages the following arbitration process

  • Opening statements are made by each party outlining what they intend to prove.
  • The parties present their cases via witnesses, documents and other evidence.

    

If the employer goes first, then 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 above listed steps.
  • Each party presents a closing statement.
  • The arbitrator adjourns to assess the evidence and to make the award.

     

The arbitrator is required by law to give you, via the above process, every opportunity to present the evidence that you have brought. You are likely to lose the case if you do not take full advantage of this opportunity. In Numsa obo Daki v Colven Associates (2006, 9 BALR 877) the employee, who was employed by a labour broker, was dismissed for being involved in a fight with a colleague at the premises of the employer's client.
     
The client had reported the alleged fight to the labour broker and instructed the broker to remove the employee from the client's premises. The labour broker then placed the employee in its pool of people waiting for employment but ceased paying the employee.
       
The arbitrator decided that

  • The employer's actions constituted a dismissal.
  • The dismissal was unfair because the employer (the labour broker) had relied only on the allegations of the client and dismissed the employee without proof that he had been involved in the fight.
  • The employer was required to reinstate the employee.

      

Thus, in many cases, a party may lose, not because there is no evidence, but because he/she failed to bring the evidence to the arbitration hearing or because the evidence was not properly presented and converted into proof. Proof, therefore, is of paramount importance at CCMA arbitration.
        
The arbitrator's role is to manage the flow of evidence during the hearing but not to bring the evidence. His/her duty is to collect the evidence brought by the parties and then adjourn the proceedings to evaluate the evidence. Therefore, if you are an employer or an employee party and you have an arbitration pending you must immediately:

  • Obtain advice from a reputable labour law expert on how to gather all the evidence needed at arbitration.
  • Use the labour law expert to make sure that your evidentiary documents, tapes and other evidence is carefully sorted into the right sequence.
  • Get assistance from the expert as to how to prepare your witnesses in a legal yet effective manner.
  • Ensure that your witness evidence dovetails with your other evidence.
  • Learn from the labour law expert how to anticipate what evidence your opponent is likely to bring and how to counteract it.

        

Ivan Israelstam, chief executive of Labour Law Management Consulting.
He can be contacted on 011-888-7944 or 082-852-2973 or e-mail  

Our thanks and appreciation to Ivan and The Star newspaper for permission to publish this article.

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