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

Commission for Conciliation, Mediation and Arbitration

Guidelines on Misconduct Arbitration

E: How to Approach Substantive Fairness




(75) Arbitrators are required to take the Code of Good Practice: Dismissal into account in determining the fairness of a dismissal for reasons relating to conduct. Item 7 of the Code provides guidelines for such dismissals. These guidelines impose constraints on the power of an arbitrator to determine fairness.23


(76) The consideration of each of the issues outlined in item 7 involves discrete factual enquiries that the arbitrator must ensure are conducted. These factual enquiries themselves can often be broken down into more detailed factual enquiries. Sometimes they are interlinked. The purpose of these guidelines is to separate out the different factual enquiries normally found in a misconduct case and to order them so that they provide a checklist for the narrowing of issues before a hearing, the receipt of evidence in a hearing, and a template for organising and assessing the evidence in an award.



23 Sidumo & others v Rustenberg Platinum Mines Ltd & others (CC) at para 175.