When conciliation fails, a party may request the CCMA to resolve the dispute by arbitration. At an arbitration hearing, a commissioner gives both parties an opportunity to fully state their cases. The commissioner then makes a decision on the issue in dispute. The decision, called the arbitration award, is legally binding on both parties. Attempts must generally be made to resolve the dispute through conciliation. If it cannot be resolved by conciliation, the parties can go to arbitration or the Labour Court, the Act specifies which dispute goes to which process.
In an arbitration hearing the party in dispute may appear in person or be represented by a legal practitioner, a director or employee of the party or any member, office-bearer or official of the party's registered trade union or registered employers' organisation. Lawyers are not normally allowed to represent parties in arbitrations over dismissal disputes. They can be used though if the commissioner and the parties consent, or if the commissioner decides that it is unreasonable to expect a party to deal with the dispute without legal representation.
Having heard the parties and their arguments, the commissioner will decide the outcome of the case, by issuing an award. The decision is legally binding on the parties and it ends the dispute. Arbitration awards are sent to the parties within 14 days of the arbitration.
By agreement between the parties or when so directed by the Director or a Senior Commissioner, the parties to the proceedings must hold a pre-arbitration conference to-
- determine facts in dispute, common cause facts, issues to be decided, and relief claimed;
- exchange documents that will be used in the arbitration;
- draw up and sign a minute of the pre-arbitration conference.