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Labour Relations Act, 1995 (Act No. 66 of 1995)

Chapter VIII : Unfair Dismissal and Unfair Labour Practice

188A. Inquiry by arbitrator

 

 

(1) An employer may, with the consent of the employee or in accordance with a collective agreement, request a council, an accredited agency or the Commission to appoint an arbitrator to conduct an inquiry into allegations about the conduct or capacity of that employee.

[Subsection (1) substituted by section 32(b) of Act No. 6 of 2014]

 

(2) The request must be in the prescribed form.

 

(3) The council, accredited agency or the Commission must appoint an arbitrator on receipt of—
(a) payment by the employer of the prescribed fee; and
(b) the employee's written consent to the inquiry.

 

(4)
(a) An employee may only consent to an inquiry in terms of this section after the employee has been advised of the allegation referred to in subsection (1).
(b) Despite any other provision in this Act, an employee earning more than the amount determined by the Minister in terms of section 6(3) of the Basic Conditions of Employment Act at the time, may agree in a contract of employment to the holding of an inquiry in terms of this section.

[Subsection (4) substituted by section 32(c) of Act No. 6 of 2014]

 

(5) In any inquiry in terms of this section a party to the dispute may appear in person or be represented only by—
(a) a co-employee;
(b) a director or employee, if the party is a juristic person;
(c) an office bearer or official of that party's registered trade union or registered employers' organisation; or

[Paragraph (5)(c) substituted by section 32(e) of Act No. 6 of 2014]

(d) a legal practitioner, on agreement between the parties or if permitted by the arbitrator in accordance with the rules regulating representation at an arbitration before the Commission.

[Paragraph (5)(d) substituted by section 32(e) of Act No. 6 of 2014]

[Subsection (5) substituted by section 32(d) of Act No. 6 of 2014]

 

(6) Section 138, read with the changes required by the context, applies to any inquiry in terms of this section.

[Subsection (6) substituted by section 32(f) of Act No. 6 of 2014]

 

(7) An arbitrator appointed in terms of this section has all the powers conferred on a commissioner by section 142(1)(a) to (e), (2) and (7) to (9), read with the changes required by the context, and any reference in that section to the director for the purpose of this section, must be read as a reference to—
(a) the secretary of the council, if the inquiry is held under the auspices of the council;

[Paragraph (7)(a) substituted by section 32(g) of Act No. 6 of 2014]

(b) the director of the accredited agency, if the inquiry is held under the auspices of an accredited agency.

[Paragraph (7)(b) substituted by section 32(g) of Act No. 6 of 2014]

 

(8) The ruling of the arbitrator in an inquiry has the same status as an arbitration award, and the provisions of sections 143 to 146 apply with the changes required by the context to any such ruling.

[Subsection (8) substituted by section 32(h) of Act No. 6 of 2014]

 

(9) An arbitrator conducting an inquiry in terms of this section must, in the light of the evidence presented and by reference to the criteria of fairness in the Act, rule as to what action, if any,may be taken against the employee.

[Subsection (9) substituted by section 32(h) of Act No. 6 of 2014]

 

(10)
(a) A private agency may only appoint an arbitrator to conduct an inquiry in terms of this section if it is accredited for arbitration by the Commission.
(b) A council may only appoint an arbitrator to conduct an inquiry in terms of this section in respect of which the employer or the employee is not a party to the council, if the council has been accredited for arbitration by the Commission.

[Subsection (10) substituted by section 32(h) of Act No. 6 of 2014]

 

(11) Despite subsection (1), if an employee alleges in good faith that the holding of an inquiry contravenes the Protected Disclosures Act, 2000 (Act No. 26 of 2000), that employee or the employer may require that an inquiry be conducted in terms of this section into allegations by the employer into the conduct or capacity of the employee.

[Subsection (11) inserted by section 32(i) of Act No. 6 of 2014]

 

(12) The holding of an inquiry by a arbitrator in terms of this section and the suspension of an employee on full pay pending  the outcome of such an inquiry do not constitute an occupational detriment as contemplated in the Protected Disclosures Act, 2000 (Act No. 26 of 2000).

[Subsection (12) inserted by section 32(i) of Act No. 6 of 2014]

 

[Section 188A amended by section 32(a) of Act No. 6 of 2014]