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

Commission for Conciliation, Mediation and Arbitration

Guidelines on Misconduct Arbitration

F: How to Approach Remedies

Cost awards

 

 

(142) An arbitrator must exercise the discretion whether or not to make a costs order in terms of the requirements of law and fairness in accordance with any rules made by the Commission65 and taking into account any relevant Code of Good Practice issued by NEDLAC and any guidelines issues by the CCMA.66

 

(143) The costs that may be awarded in terms of the rules include the actual costs incurred by a party that is unrepresented or is represented by an employee, a director or a member of a closed corporation, an office-bearer or official of a trade union or employers' organisation or a trade union representative.67 A commissioner who makes an award in terms of this provision must specify clearly the items and amounts in respect of which costs are ordered.68 However, this provision may not be used to order a party to recompense the costs incurred by the CCMA in respect of the arbitration of a dispute. A commissioner may only award costs in respect of the legal fees of a party that is represented in an arbitration by a legal practitioner, if the other parties to the arbitration were represented by a legal practitioner.69 The amount of costs that may be awarded in respect of legal fees is set by Rule 25(4).70

 

 

65 Rule 39(1) sets out the factors that an arbitrator shoud have regard to considering whether to award costs. These are:

(a) the measure of success that the parties achieved; (b)considerations of fairness that weigh in favour of or against granting a cost order; (c) any with prejudice offers made with a view to settling the dispute; (d) whether a party or the person who represented that party in the arbitration proceedings acted in a frivolous and vexatious manner by proceeding with or defending the dispute or in its conduct during the arbitration proceedings; (e) the effect that a cost order may have on a continued employment relationship; (f) any agreement concluded between the parties to the arbitration concerning the basis on which costs should be awarded; (g) the importance of the issues raised during the arbitration to the parties as well as to the labour community at large; (h) any other relevant factor.

66 Section 138(10) of the LRA.
67 See Rule 25(1) (a).
68 Rule 39(2).
69 Rule 25(3).
70 The costs that may be awarded are: (a) for the first day of arbitration (or any arbitration concluded in a single hearing) - R6000 (VAT inclusive); (b) for each additional day of arbitration - R4000 (VAT inclusive).