Preparatory steps

CCMA Suggestions
The following suggestions are made to assist respondents to prepare for arbitration in a way that facilitates effective dispute resolution. It is also aimed at preventing inappropriate and unnecessary disputes being brought to the CCMA. CCMA Rules rules on practices and procedures in terms of S115 (2)(a) of the Labour Relations Act 66 of 1995 (LRA) are available.

In principle the preparatory steps for conciliation also apply for arbitration, including - appropriate representation, being suitably prepared, avoiding postponements, and dealing with jurisdictional issues in advance. Unlike conciliation however, arbitration is a more formal process. Section 138 of the Act stipulates that-

1. The commissioner may conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities.

2. Subject to the discretion of the commissioner as to the appropriate form of the proceedings, a party to the dispute may give evidence, call witnesses, question the witnesses of any other party, and address concluding arguments to the commissioner.

Be open to settlement through conciliation - section 138 (3) of the Act provides for conciliation during the arbitration process. Settlement through conciliation is still the desirable option. Be prepared for possible settlement before or during the arbitration process.

Prepare submissions and forward statement of case - compile all relevant documents, including minutes of disciplinary hearings, and make copies for the arbitrator and the applicant. Ensure submissions are clear and concise. Submit at least two weeks in advance of the hearing to the CCMA a statement of case detailing the nature of the dispute, intended evidence to be lead, and the number of witnesses to be called.

Hold a pre-arbitration meeting - to streamline proceedings hold a pre-arbitration meeting with the applicant. Determine facts in dispute and common cause issues. Exchange documents and other materials that will be used in the arbitration. If possible, reduce the issues arising from the pre-arbitration meeting to writing in the form of a minute, and submit such a minute to the CCMA at least seven days prior to the arbitration.

Bring appropriate witnesses - ensure that the appropriate witnesses are available for the hearing, but avoid bringing unnecessary witnesses. Assist in enabling the applicant's witnesses to attend the hearing. Do not request the CCMA to subpoena witnesses unless absolutely necessary.

Ensure appropriate representation - ensure representation follows the requirements of s138 (4) of the Act: In arbitration proceedings a party to the dispute may appear in person or be represented only by:

1) a legal practitioner;
2) a director or employee of the party; or
3) any member, office-bearer or official of that party's registered trade union or registered employers' organisation.

In the case of dismissals for reasons related to conduct or capacity, bear in mind s140 of the Act: If the dispute being arbitrated is about the fairness of a dismissal and a party has alleged that the reason for the dismissal relates to the employee's conduct or capacity, the parties, despite section 138(4), are not entitled to be represented by a legal practitioner in the arbitration proceedings unless:

1) the commissioner and all other parties consent; or
2) the commissioner concludes that it is unreasonable to expect a party to deal with the dispute without legal representation, after considering

Ensure that representatives have a direct knowledge of the case.

Onus in dismissal disputes
Bear in mind s192 of the Act, which states that:

1) In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal.

If the existence of the dismissal is established, the employer must prove that the dismissal is fair.