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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

Narrowing the issues in dispute (stage 3)

 

 

(26) The purpose of stage 3 is to narrow the issues in dispute by reaching agreement on the legal and factual issues involved in the case in order to expedite the hearing. In relatively simple cases, it may not be necessary to engage in this process. Narrowing the issues may already have been done as part of the conciliation process.

 

(27) This is usually an appropriate time, if opening statements have not already been made, to invite the parties to make brief opening statements in which they set out their approach to the issues and the evidence in the arbitration.

 

(28) During this stage, the arbitrator should ensure that the employee states whether the procedural fairness or the substantive fairness of the dismissal, or both, are being challenged; and identifies the grounds of the challenge. The arbitrator should ask the employee to specify the relief that is claimed and, if compensation is claimed, the amount of compensation and how it is calculated. The arbitrator should ask the employer to indicate the extent to which it admits or denies the employee's case. In this process of narrowing the issues, the arbitrator should deal with the question whether there was a fair reason for the dismissal by referring to each of the issues identified in item 7 of the Code of Good Practice: Dismissal (Schedule 8 to the LRA). The arbitrator should record whether or not the parties are in agreement by reference to each one of these issues.

 

(29) Both parties should indicate—
(29.1) what documents they will be using in support of their case and the witnesses they intend calling and summarise what their evidence will be;
(29.2) the extent to which they admit the documents and evidence of the other party.

 

If the parties are represented, they should identify the legal principles and legal documents that they rely on in support of their case.

 

(30) At the conclusion of this stage, the arbitrator should secure and record an agreement from the parties that identifies, by reference to the issue of procedural fairness and to each of the issues identified in item 7 of the Code of Good Practice: Dismissal—
(30.1) the issues that are common cause;
(30.2) the issues that are in dispute between the parties;
(30.3) the issues that the arbitrator is required to decide in order to resolve the matter.