ATTORNEY | ARBITRATOR | MEDIATOR
Here you will find documents that will make your life a little easier when it comes to doing arbitrations.
The first step is to download and print the 2-sided Quick Reference
. This document puts the following at your finger-tips:
· The introduction to an arbitration process that you must read into the record when commencing an arbitration;
· The prescribed words to be used when swearing-in a witness;
· A short description of the types of evidence; factors to consider when assessing evidence; the duties of employers; and elements of the most common types of misconduct;
· The minimum wages to be paid in terms of selected sectoral determinations.
Use this form when commencing a dismissal arbitration.
You will be able to get a wealth of information from the parties. This evidence is often not placed before you by the parties but which is critical when deciding various issues.
Use this list to obtain important information from the parties when conducting an arbitration related to alleged unfair promotion ⁄ non-appointment.
Remember that as a commissioner you have a duty to ensure that evidence is obtained on issues – procedural and substantive – to enable you to rule on the fairness of the dismissal or labour practice.
If you fail to obtain such evidence – or you fail to notice that a party has omitted to lead such critical evidence – then you will not be in a position to make findings on essential elements of the case.
That will cause your award to be flawed and subject to review. To minimise such possibility use the checklists below.
These convenient 1-page checklists have been drawn up having regard to case law, CCMA practice, the various Codes, and the Misconduct Guidelines.
They can be used to conduct a pre-arb to identify the issues on which there is agreement or a dispute.
A minute of these issues can then be drawn up and distributed to the parties.
Here is an example of such a minute .
Alternatively the checklist can be given to both parties with the request that they study it and ensure that evidence is led on the relevant issues.
Give the parties some time to consider the checklist and plan their case accordingly.
Keep in mind however that no checklist can ever deal with any and every conceivable situation. Every case is unique and therefore be alert to the unique features of a case.
You can however minimise surprises if a proper and comprehensive pre-arb is done. You and both parties will then know in advance what the case is about and what needs to be done from both sides.
I have used these checklists for the past few years and they come to you tried and tested. Parties find them very useful.
Please note that each of the documents is updated on an ongoing basis having regard to case law and therefore for the latest version of any of these documents you are welcome to visit this site for the latest version for free download.
(Each document bears a version number.)
Your suggestions on how this material may be improved will be most welcome.
Use the checklists below to prepare for your case. Each checklist contains over 95% of the issues that you will normally encounter in an arbitration.
Go through the relevant checklist and prepare your case having regard to the issues that may arise.
Once you have identified something that may be an issue ensure that your witness understands that issue so that he or she can give relevant and concise evidence on such issue.
Each and every dispute lodged with the CCMA or a bargaining council is dealt with in terms of the Labour Relations Act 66 of 1995 (LRA).
Unfortunately the LRA does not tell you about the elements that must be considered in deciding whether a dismissal or practice is fair or unfair.
Most of those elements are a mystery to ordinary people. But commissioners at the CCMA or bargaining council must test the evidence that is presented at a hearing against such elements when deciding any case.
The checklists below contains over 95% of the elements that may need to be considered when a commissioner needs to decide whether a dismissal or practice is fair or unfair.
Go through the relevant list carefully and prepare your case accordingly.
You are welcome to email me for advice.
PLEASE NOTE HOWEVER THAT SUCH ADVICE IS GIVEN WITH NO OBLIGATION AND AT YOUR OWN RISK.
PLEASE ARRANGE A CONSULTATION WITH AN ADVISOR OF YOUR CHOICE IF YOU NEED PROPER ADVICE.