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

Commission for Conciliation, Mediation and Arbitration

Guidelines on Misconduct Arbitration

C: Assessing Evidence and Drafting an Award

Background facts

 

 

(50) Background facts should set the scene and contain undisputed facts that may be important in analysis later in the award such as length of service or the salary at time of dismissal. Background facts should focus on the following aspects:
(50.1) The parties. These facts describe the parties to the dispute. The question of whether a trade union is a party to the dispute or a representative of the employee in the dispute should be clarified.
(50.2) The workplace. These facts should include the sector, the nature of the work, the size of the workplace and any special considerations that may flow from this. So, for example, a mine may have special requirements as to discipline and safety.
(50.3) Procedures and agreements. These facts should include the facts concerning the regulation of conduct in the workplace such as disciplinary codes, disciplinary procedures and collective agreements.
(50.4) The employment relationship. These facts are specific to the employee such as the contract of employment, length of service, salary at dismissal and disciplinary records.
(50.5) The history of the dispute. These facts should summarise the events leading up to the dispute, the dispute itself, the pre-dismissal procedure, the referral to the CCMA and any relevant procedural history prior to the arbitration hearing into the merits including any delays.
(50.6) The relief sought. This should simply set out the relief which the employee is seeking in the arbitration.
(50.7) The conduct of the arbitration. These facts concern facts specific to the conduct of the arbitration itself. It should deal with representation, dates of the hearing, attendance, applications and rulings concerning the conduct of the arbitration. If representation is disputed or an application is opposed, those disputes may or may not raise factual issues. But if they do, then those issues are best summarised, analysed and decided under a preliminary point on, for example, representation.

 

(51) The degree of detail will depend on the importance that any of these facts may have on analysis later in the assessment. Arbitrators must ensure that an award demonstrates that the decision that they have made is reasonable. 13

 

 

13 Herholdt v Nedbank Ltd (SCA) at para 25.