As of the beginning of this year, new regulations for conducting CCMA (Council for Conciliation, Mediation, and Arbitration) Misconduct Arbitration hearings are in force, but have not been well publicised.  The change to the regulations ruling CCMA Arbitration hearings is the first of a number of labour law changes planned for this year, including the Labour Relations Act, the Basic Conditions of Employment Act, and the Employment Equity Act.  The Misconduct Arbitration Guideline changes are designed to reduce the number of cases taken to the Labour Court on review.

About 80 % of CCMA cases relate to Misconduct, leading to claimed unfair dismissals against employers, wrote labour lawyer Tony Healy in the Weekend Argus. The amendments specify how misconduct arbitrations will now be conducted by CCMA commissioners.  Writing in The Skillsportal, labour lawyer Ivan Israelstam stated that the new guidelines have been designed to ‘promote consistent decision making in arbitrations dealing with dismissals for misconduct’.  He explained: “The LRA (Labour Relations Act) contains a large number of very big and crucial legal gaps. This fact, together with the fact that the concept of what is and is not ‘fair’ is heavily influenced by the views of each arbitrator, has historically rendered the labour law jungle an extremely dark, uncertain and dangerous place for employers to be. It is therefore high time that a document was put together to clear up these uncertainties. While the CCMA Guidelines do not entirely fulfil this function they do go some way towards clearing up some uncertainties as regards the law of fair misconduct dismissal”.

The new guidelines dictate that the CCMA Commissioners must interpret and apply the Labour Relations Act as well as related legislation which is binding on the CCMA, with decisions made at the highest level of court, including the Constitutional Court, the Supreme Court of Appeal, Labour Appeal Court, High Court, and Labour Court.  It is compulsory for arbitration awards to be ‘lawful, reasonable, and procedurally fair’, to tie in with our Constitution.  Ultimately, the onus rests on the employer to prove the fairness of the dismissal.

The new CCMA Guidelines for Misconduct Arbitrations specifies that:

*   arbitration must be impartial

*   both parties may call witnesses to testify

*   the arbitrator must inform the parties of eleven aspects relating to the procedure of the arbitration, including the rights of the parties

*   legal representation may be requested by any of the parties, even during the arbitration procedure

*   the employee should be asked what compensation is requested

*   a written award with reasons must be sent to both parties within 14 days of the arbitration

*   the arbitrator must evaluate the evidence based on the probabilities, and reliability of the witnesses

*   the commissioner must evaluate the evidence against the Labour Relations Act and the company’s disciplinary procedures, and must check if there was a relevant rule, if it was known to the employee, if it was contravened, and if the rule was reasonable.

*  The commissioner must evaluate whether the dismissal was appropriate, given the gravity of the contravention by the employee, and whether it was justified in being a ‘serious misconduct‘.

*   in making an award, the commissioner must evaluate whether re-instatement of the employee is feasible (given that the employee would like to be re-instated) and ‘tolerable‘.  If re-instatement is not accepted by the employee or deemed to be intolerable, a ‘just and equitable’ compensation must be determined by the commissioner, but may not exceed 12 months.  The commissioner may levy an arbitration charge, and may seek additional compensation from the employer for the employee if it was deemed by him/her to be a ‘seriously unfair dismissal’.

Most CCMA cases are ‘ConArb’, a combination of Conciliation and Arbitration.  Many employers (and employees) are unprepared for this, and do not understand that information provided in the Conciliation phase will not be incorporated in the Arbitration phase at all, therefore necessitating a repeat of all relevant facts at the Arbitration stage.  It is important for employers to be well prepared for such CCMA hearings, in knowing their rights, and to be informed about the procedures, and to be in contact with their labour lawyers during the hearings, as an Arbitration can turn out to be a very costly exercise.  In the past, employers have felt that commissioners have automatically sided with employees, therefore procedurally unfair!.

CCMA Guidelines: Misconduct Arbitrations, Notice 602 of 2011, Government Gazette, September 2011.

Chris von Ulmenstein, Whale Cottage Portfolio: www.whalecottage.com Twitter: @WhaleCottage