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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

Preparation and introduction (stage 1)

 

 

(19) The purpose of stage 1 is to create confidence in the arbitrator and a climate that is conducive to the resolution of the dispute.

 

(20) At the start of the arbitration, the arbitrator should welcome the parties and advise them of—
(20.1) the arbitrator's appointment to the case and that the proceedings will be recorded;
(20.2) any interest the arbitrator may have in the outcome of the case; 5
(20.3) any contact the arbitrator may have with any of the parties before the arbitration which may give rise to a perception of bias or a potential conflict of interest in the matter;
(20.4) the language in which the proceedings are to be conducted and if there is a need for interpretation, ensure the presence of an interpreter;
(20.5) the rules of proceedings such as how to address the arbitrator, the rules against interruption and how and when to object;
(20.6) the role and powers of the arbitrator;
(20.7) the rights of the parties in terms of section 138(2);
(20.8) the procedure in terms of which documents are introduced into proceedings;
(20.9) the requirement that if evidence of a witness is disputed, the other party should, at the appropriate stage, question the witness in that regard and put its version to the witness so that the witness has an opportunity to respond;
(20.10) the fact that the parties can at any stage during the arbitration agree to conciliate; and
(20.11) any housekeeping arrangements.

 

(21) The extent to which the arbitrator deals with any of these issues should be determined by the experience of the parties, or their representatives, and their knowledge of CCMA procedures. If it is evident at a subsequent stage that a party or their representative does not understand the nature of proceedings and that this is prejudicing the presentation of its case, the arbitrator should draw this to the attention of the party.6 Circumstances in which it may be appropriate for the arbitrator to do this include if a party—
(21.1) fails to lead evidence of its version under oath or affirmation;7
(21.2) fails to cross-examine the witnesses of the other party or fails to put its version to those witnesses during cross-examination;
(21.3) changes its version of events or puts a new version during proceedings.

 

 

5 Clause 3.1 of the Code of Conduct for Commissioners states that: "Commissioners should disclose any interest or relationship that is likely to affect their impartiality or which might create a perception of partiality. The duty to disclose rests on the commissioners."
6 Consolidated Wire Industries (Pty) Ltd v CCMA & Others (LC) at para 42.
7 Klaasen v CCMA & others (LC) at paras 27-29.