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

Commission for Conciliation, Mediation and Arbitration

Guidelines on Misconduct Arbitration

B: How to Conduct Arbitration Proceedings

Deciding on the manner of conducting an arbitration

 

 

(11) Arbitrators have a discretion to determine the form in which an arbitration is conducted; the LRA does not require arbitrators to act in the same manner as a court.2 An arbitrator should ensure that the parties are aware of the arbitrator's powers and the procedure to be followed. This is particularly important if the parties or their representatives have little or no experience of CCMA proceedings.

 

(12) In terms of section 138(1) of the LRA, an arbitrator must conduct an arbitration in a manner that the arbitrator considers appropriate to—
(12.1) determine the dispute fairly and quickly; and
(12.2) deal with the substantial merits of the dispute with the minimum of legal formalities. In order to deal with "the substantial merits" of a dispute an arbitrator should not allow technicalities to prevent the full picture of relevant events being placed before the arbitrator.3

 

(13) An arbitrator must decide on the form of an arbitration in terms of section 138(1) in every arbitration4 and advise the parties of that decision. It is advisable that this decision is made after the parties have gone through the process of narrowing the issues which is described below. (The factors an arbitrator should consider when making this decision are set out in para 31.)

 

(14) In terms of section 138(2), subject to the arbitrator's discretion as to the appropriate form of proceedings, each party to a dispute may—
(14.1) give evidence;
(14.2) call witnesses;
(14.3) question witnesses; and
(14.4) address concluding arguments.

 

(15) The parties are entitled to exercise these rights, irrespective of the form of proceedings. However the manner in which they exercise those rights will depend on how the arbitrator decides in terms of section 138(1) to conduct the arbitration.

 

(16) An arbitrator must conduct the arbitration impartially. This means that an arbitrator must act in a manner that is fair to both parties and not engage in conduct that is biased or that might reasonably give rise to a party forming a perception that the arbitrator is biased. An arbitrator must not seek to expedite an arbitration in a manner that is unfair to a party or is unreasonable.

 

 

2 Naraindath v CCMA & Others (LC) at paras 26-27.
3 For example, in Le Monde Luggage t/a Pakwells Petje v Dunn NO & other (LAC), the Labour Appeal Court (at paras 17 to 19) held that an arbitrator may ascertain any relevant fact in any manner that it deems fit provided that it is fair to the parties. In this judgment the arbitrator approved the approach articulated by the Labour Court in Naraindath v CCMA & Others (LC) at para 32 that arbitrators should adopt the same approach to evidence as that applied by the Small Claims Court. In Naraindath the Labour Court held that an arbitrator could admit hearsay evidence if satisfied on proper grounds that the evidence was reliable. When presented with hearsay evidence, including evidence on affidavit of a witness who is not present, the arbitrator must evaluate whether or not to admit the evidence in accordance with the requirements of section 3 of the Law of Evidence Amendment Act 45 of 1988 (see Matsekoleng v Shoprite Checkers (Pty) Ltd (LAC)). Hearsay evidence may be admitted if the party against whom the evidence is to be adduced agrees to the evidence being admitted or the person upon whose credibility the probative value of the evidence depends also testifies at the proceedings. If neither of these circumstances prevail, an arbitrator may decide whether or not to admit hearsay evidence after having regard to the nature of the proceedings; the nature of the evidence; the purpose for which the evidence is tendered; the probative value of the evidence; the reason why the evidence is not given by the person upon whose credibility the probative value of the evidence depends; any prejudice to a party which the admission of such evidence might entail; and any relevant other factor.
4 Sondolo IT (Pty) Ltd v Howes & others (LC) at paras 9-10.