New CCMA guidelines relating to misconduct arbitrations recently gazetted, and due to become effective in January 2012.The guidelines highlighted (1) How to conduct arbitration proceedings. (2) Assessing evidence and drafting an award. (3) How to approach procedural fairness. (4) How to approach substantive fairness. (5) How to approach remedies.

The guidelines note that “arbitrations typically involve six stages”: (1) Preparation and introduction. (2) The preliminary issues. (3) Narrowing the issues. (4) The hearing of evidence. (5) The concluding arguments. (6) The award.

When analysing evidence “an arbitrator must weigh the evidence as a whole, taking into account the following factors” which are explained under the headings of “the probabilities” and “the reliability of the witnesses”. Procedural fairness is to be assessed in accordance with item 4 of schedule 8 of the LRA, or the employer’s disciplinary procedure, should they have one. In the absence of a workplace disciplinary procedure, “the relevant facts should be summarised and analysed under the following headings: (1) The employer must notify the employee of the allegations of misconduct using a form and a language the employee can reasonable understand. (2) The employee should be allowed a reasonable time to prepare a response to the allegations. (3) The employee should be allowed the assistance of a trade union representative or fellow employee in preparing a response and in stating a case in any enquiry. (4) “The employee should be given the opportunity to state a case in response to the allegations.”

When considering substantive fairness in a misconduct arbitration, an arbitrator, predictively and as has been the case in the past, must among other things consider whether the employee contravened a workplace rule or standard regulating conduct; whether it was valid or reasonable; whether the employee was aware or could reasonably been aware of the rule; whether the rule or standard has consistently been applied; and whether dismissal was an appropriate sanction for the contravention for the rule or standard in question. “An arbitrator may award costs if a party or representative has acted in a frivolous or vexatious manner in processing a dispute or in the conduct of arbitration proceedings.”

For further information or any labour related matters, you can contact Bernard Reisner:
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