The CCMA has been a part of the employment law landscape for approximately twenty three years and, as are Bargaining Councils, it is tasked with the adjudication of many employment disputes if and when conciliation fails, the vast majority of which are related to alleged unfair dismissal. Approximately eighty percent of all labour disputes are resolved by way of conciliation, with the majority of unresolved labour disputes being referred to arbitration.
Arbitration hearings are conducted around the country on a daily basis in a growing number of CCMA offices countrywide. It’s a win/lose process.
As much as labour arbitration is not conducted with quite the same degree of legality as is the case in Magistrate and High Courts, users will tell you that it is still a process which requires a keen understanding of such subjects as the law of evidence, the burden of proof, and even protocols, to a degree. This has been the experience of our firm in representing parties in arbitration across the country, over many years.
Certain basic principles must be fully understood.
To begin with, arbitration cases are hearings de novo. This means that the arbitration hearing hears the case afresh, and is not a review of the employer’s original decision. Employers are not required to ensure that dismissal decisions are perfect, but they must be fair and reasonable.
Arbitrators are entitled to conduct arbitration hearings “in a manner that the Commissioner considers appropriate in order to determine the dispute fairly and quickly”. As such, commissioners may, for example, depart from the normal rules of evidence (such as the admission of hearsay evidence).
In practice, Commissioners vary markedly in style; some will say very little, whilst others will assume a far more inquisitorial role.
Cases must be proved on the balance of probabilities which, put simply, means that it must be proved that the employee is probably guilty, versus the burden of proof in a criminal court, which is proof beyond reasonable doubt. This means that the brden of proof in disciplinary an arbitration hearings is less than that in criminal cases. Anotehr way to describe the burden of proof in disciplinary and arbitration hearings is that the probabilities that the employee is guilty must be grater than the probabilities that the employee is not guilty
The relationship between proof and evidence must be grasped. Cases are proved utilising evidence such as eye witnesses, documents, photographs and CCTV footage. Add to this the so-called argument (persuasive closing summary statements and submissions), and the ‘proof’ (evidence and argument) is complete.
All cases are, at least potentially, assessed on the basis of two types of fairness. To begin with, the employer must prove that an employee was dismissed in a procedurally fair manner. In short, this obligates the employer to comply, at the very least, with the Labour Relations Act’s Code of Good Practice: Misconduct & Incapacity (LRA Schedule 8), or the employer’ disciplinary procedure and code where applicable.
This includes granting the employee sufficient time to prepare for a disciplinary hearing normally no less than 48 hours) and granting the employee the right to an interpreter, the right to be represented and the right to call witnesses, in the course of presenting a defence.
Dismissals must also be substantively fair – fair reason, sufficient proof, consistently applied and an appropriate (ie: not unduly harsh) sanction.
Substantive fairness is invariably assessed by Commissioners in accordance with a factual inquiry into whether or not the employee contravened rule, was the rule in question valid/reasonable and was the employee aware of the rule, or could they be expected to have reasonably had knowledge of the rule?
Witnesses are subjected to an evidence-in-chief, cross-examination, re-examination line of questioning.