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Pre-Dismissal Arbitrations
(Disciplinary Enquires)
It often happens that an employee (more often a senior employee)
and employer consent to a disciplinary enquiry relating to conduct or capacity being chaired by a neutral outside party. Whatever the
outcome, the decision is deemed to be that of the employer. The CCMA, accredited agency or a council may act as such third person
in terms of section 188A. Both the employer and the employee must agree to this process.
This is an arbitration done at a stage where there is not yet a dismissal. This is unlike a normal arbitration at the CCMA or council where a dismissal has already taken place. This process is intended to take the place of a disciplinary enquiry and the subsequent arbitration, which is heard at the CCMA or council.
Requirements
The employer and the employee must consent to the enquiry, in
writing in the prescribed form.
The employer must pay the prescribed fee.
The employee may only consent to such pre-dismissal arbitration
once he/she has been advised of the allegations relating to that
specific arbitration.
NOTE: - an employee who earns above a specific amount as set out in the Basic Conditions of Employment Act - section 6(3), may
consent to the holding of a pre-dismissal arbitration in his/her
contract of employment. This means that a clause to this effect may
be contained in the employment contract at the outset when the
employee is employed. The effect of this is that it is not required to
first obtain the written consent of such an employee prior to applying
for such arbitration as he / she has already agreed to this procedure
when he / she was first employed.
Once the above has been complied with, the CCMA, accredited
agency or the council must appoint an arbitrator to hear the matter.
Representation
The employee may appear in person. He / she may only be represented by the following persons:
• A co-employee
• A director or employee - if the party is a juristic person
• Any member, office bearer or official of that party’s registered
trade union or registered employers’ organisation
• A legal practitioner - only by agreement between the parties
General Provisions of Pre- Dismissal Arbitrations
The same provisions, which apply to arbitrations apply to predismissal arbitrations. These are set out in section 138 of the LRA. Briefly, they are the following:
• The arbitrator may conduct the hearing in a manner considered
appropriate to determine the dispute fairly and quickly, taking into account the substantial merits of the dispute must be dealt with the minimum of legal formalities.
• The arbitrator has the discretion to determine the appropriate
form of the hearing.
• A party may give evidence, call witnesses, question witnesses of the other party and address concluding arguments to the arbitrator.
• If the parties agree, the arbitrator may suspend the prearbitration
hearing and try to resolve the dispute through conciliation.
• If the referring party fails to appear, the matter may be dismissed
• If the non-referring party fails to attend, the arbitrator may proceed with the pre-dismissal arbitration in his / her absence or may adjourn the proceedings
• Any codes of good practice of NEDLAC or published CCMA guidelines must be taken into account if relevant to the dispute.
• The arbitrator must furnish a pre-arbitration award within 14 days after the hearing that contains reasons for the decision. A copy must be served on each party and the original award must be field with the registrar of the Labour Court.
• The director of the CCMA may extend the 14 day period on good cause shown.
Pre-Dismissal Arbitration Award
The arbitrator may make an appropriate award in terms of the LRA,
which may include giving effect to any collective agreement, the
provisions or primary objects of the LRA and / or a declaratory order. The arbitrator must in light of the evidence and reference to the criteria of fairness in the LRA direct what action should be taken
against the employee.
Costs
The arbitrator may include an order for costs if a party acted in a
frivolous or vexatious manner in the hearing or by proceeding with
or defending the hearing. (Refer to information sheet: Costs) for
further information.
Powers of Arbitrator and effect of the award
The arbitrator has all the powers conferred on commissioners in
terms of the LRA . The provisions in the LRA dealing with the effect
of the award, variation and rescission and review apply to predismissal arbitration awards.
Relevant legislation:
Labour Relations Act, sections 188A, 138,142(1)(a) - (e), (2), (7) -
(9), 143, 144, 145 and 146.
FOR MORE INFORMATION CONTACT THE CCMA OPERATIONS & INFORMATION DEPARTMENT ON (011) 377-6650 OR YOUR NEAREST CCMA OFFICE.