WHAT IS ARBITRATION?

Arbitration means the two sides (or parties to the dispute) agree to use a third party to settle a dispute. A third party is someone who is not from the union or employer’s side. The arbitrator acts as judge to decide the dispute. Under the LRA, the arbitrator is a commissioner from the CCMA or Bargaining Council. After hearing what both parties have to say, the commissioner can make a ruling that is legally binding and must be accepted by both parties.

HOW TO REFER A CASE FOR ARBITRATION

If there is a Bargaining Council that regulates the sector that the parties work in, then the matter must be resolved according to the rules of that Council. Contact the relevant Council to find out what to do if the employee wants to refer the matter to arbitration. In some cases, even though there is a Bargaining Council, the arbitration may be done by the CCMA. To refer the matter to the CCMA for arbitration:

• Fill in form LRA 7.13. This can be done online through the CCMA website: https://cmsonline.ccma.org.za/Default.aspx
• Send a copy of the form to the employer, by e-mail, fax, registered mail or personal delivery. If the form is completed and submitted online, it will automatically be sent to the email address that has been provided for the employer.
• Send a copy to the CCMA, by e-mail, fax, registered mail or personal delivery. Attach proof that you have sent a copy to the employer, for example a fax transmission slip, registered mail slip, or affidavit confirming personal delivery. If the application was done online, it will automatically be sent to the CCMA.
• This referral form LRA 7.13 must be sent to the CCMA or the Bargaining Council within 90 days of receiving the certificate from the CCMA indicating that conciliation has not been successful.

THE ARBITRATION HEARING

The CCMA or Bargaining Council will appoint a commissioner to arbitrate, will set the time and venue, and inform both parties. The arbitration hearing is relatively informal and the commissioner will encourage the parties to focus on the merits of their cases, and to avoid legal technicalities.

After hearing evidence from both parties under oath, the commissioner can make a ruling that is legally binding and must be accepted by both parties. If the commissioner decides that the employer was wrong or unfair, the commissioner can order the employer to take certain steps or to pay compensation. (See Checklist to prepare for an arbitration)

WHO CAN REPRESENT EMPLOYEES AND EMPLOYERS IN AN ARBITRATION PROCEDURE?

Employees can only be represented by a fellow employee, an attorney (where the case does not involve misconduct or incapacity dismissal), a union official or union office bearer. Employers can only be represented by an attorney where the dispute is not a misconduct or incapacity dismissal, an employee of the business, or a representative from an employer’s organisation.

In cases involving dismissal for misconduct or incapacity, attorneys are not allowed unless the commissioner specifically allows this.

Legal aid will only be granted to an employee in cases where the LRA allows for attorneys to be present, and cases where the commissioner specially allows attorneys. (See Applying for legal aid)

ARBITRATION APPEALS

There is no appeal against an arbitration award. But either party may request the Labour Court to review the arbitrator’s decision if they think:

• The arbitrator exceeded their powers
• There was something legally wrong in the proceedings
• The arbitrator did not consider relevant issues in accordance with the law.

They must ask for a review within 6 weeks of receiving the arbitration decision.