IVAN ISRAELSTAM: This is why employers should know CCMA policy

The Commission for Conciliation, Mediation and Arbitration’s  “Guidelines on Misconduct Arbitrations” item 4 indicates that the document represents the CCMA’s policy, and so should be applied by commissioners in carrying out arbitrations.

The guidelines require “commissioners to interpret and apply the [Labour Relations Act] and other legislation in accordance with judicial decisions that are binding on it”, and that the most recent binding decisions of the courts must be followed by commissioners. These include decisions of the Constitutional Court, the Supreme Court of Appeal, high court, labour court and labour appeal court. It is not clear whether this means that all labour-related decisions made in these courts are binding on commissioners or whether only some are binding.

As the guidelines do not discuss which decisions would not be binding, it appears likely that the guidelines intend all labour-related decisions made in the listed SA courts, and that have not been overturned, to be binding on the arbitrators.

The guidelines also oblige commissioners to favour the principles of law arising from the new labour law dispensation that was instituted after the previous act of 1956 was repealed in 1995.

Item 10 of the guidelines makes it compulsory for arbitration awards and rulings to be lawful, reasonable and procedurally fair. This item of the guidelines draw directly on the provisions of section 33 (1) of the constitution, which gives everyone the right to administrative action that is lawful, reasonable and procedurally fair. It appears that this has paved the way for parties taking arbitrators to the labour court on review to do so on the basis that the arbitrator failed to comply with these constitutional provisions.

The greatest importance of these guidelines is that they deal with a wide spectrum of aspects relating to misconduct dismissal cases. These aspects include the manner of conducting the arbitration hearing, the nature of the arbitration; requirements for different stages; the requirement that evidence must be held anew at arbitration; explanation of the inquisitorial approach as opposed to the adversarial approach; rules for the assessment of evidence by arbitrators; the meaning  and components of substantive and procedural fairness; the role of the employers’ disciplinary procedure and code; and discipline of trade union representatives.

The guidelines reinforce the principle that the legal onus is on the employer to prove the fairness of the dismissal. It reminds employers of the need to take mitigating circumstances into account and elaborates on the remedies that arbitrators are to use in cases where dismissal has been found to be unfair.

It still remains to be seen whether the commissioner arbitrating your case will interpret these guidelines correctly. You have much scope to influence the way in which your arbitrator interprets CCMA policy. You can do this in the following ways:

• Ensure that you gain an in-depth understanding of the true meaning of this policy.
• Present your evidence in such a way that it takes advantage of the guidelines.
• Cite the appropriate case law that should influence the arbitrator’s decision.

•  Israelstam is CEO of Labour Law Management Consulting.