We often receive calls from our clients after the Arbitration advising us that the award of the Arbitrator has been negative and they want to appeal same. The arbitration award is final and binding and cannot be appealed. The award can be taken to the Labour Court on Review but a Review means there are very limited grounds and invariably these Reviews are not successful.
Arbitrations must be treated seriously and must be handled as if you are entering into a Court Case. The preparations must be carefully done and all the paperwork and witnesses must be present. Remember, there is only “one bite at the cherry”. It does not help to say that we have witnesses to prove this fact or that fact, unless these witnesses are present, willing and able to give that testimony there and then at the Arbitration. Over and above this it is vital to ensure that all the documentary evidence is carefully collated into a Bundle, properly numbered and duplicated so that this very Bundle would be referred to during the evidence, enabling the Arbitrator, Witness and Cross-Examiner to refer to the same page at the same time. We spend many hours preparing for Arbitrations so as to ensure that there is no room for error and that even the most negative Arbitrator would be able to assess our client’s position without any room for error. Obviously in our preparations we do come across technical legal points which we exploit to the maximum. Remember Arbitrations are serious and not a game. Negative Arbitration Awards are time consuming, costly and destructive.
In an Arbitration involving the Bafokeng Platinum Mine the Employer did not call additional witnesses to authenticate the Clocking-in System. This failure led to the Employer loosing the case and creating an enormous upset at the workplace. The Employer took this on review and because the Employer had not properly presented its case at the Arbitration the Review was unsuccessful, causing further financial damages. It was stated by the Judge that the Bafokeng Mine was a large Corporation and could easily have conducted the Arbitration properly. One cannot blame the Arbitrator for not advising the Mine to call further witnesses.
This case clearly outlines the duty of care to be taken by Employers when facing the finality of Arbitrations. Be warned!
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