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Preparing for a CCMA arbitration by Waseem Hussain

Waseem Hussain

INTRODUCTION

 

The Commission for Conciliation, Mediation and Arbitration (“CCMA”) is an independent body that aims to promote fair labour practices by resolving labour disputes between employees and employers under the Labour Relations Act (LRA).

The commissioner’s role is to try to resolve a dispute referred to it by conciliation, within thirty (30) days of it being referred to the CCMA.  If the dispute is settled by conciliation, an agreement will normally be drawn up and that ends the matter.  The commissioner will issue a certificate recording that the dispute has been settled, or not.

It is also important to take note of the process for which a matter is set down.  Some matters are set down for the “con/arb” process.  This simply means that arbitration will follow immediately should conciliation fail – it is therefore a vital step of your preparation to ensure that you are aware of this fact.

 

Parties may generally file an objection to the con/arb process, however, there are limited instances which prevents parties from doing so.

Failing settlement of the dispute, the matter may be referred to arbitration.

This is a hearing process where the parties have the opportunity to state their case.  During the process, oral evidence is presented as well as any other forms of evidence in support of a party’s case.  Thereafter the commissioner will issue an arbitration award within fourteen (14) days.  An arbitration award is binding and the equivalent of a court ruling.

 

PREPARING FOR A CCMA ARBITRATION

 

Rule 25(1)(b) allows an employee to be represented by either a legal practitioner or candidate attorney through the arbitration process and in some instances an application must be made before a party can make use of legal representation in the CCMA.

Fundamental to preparation for an arbitration is getting the right representation and preparing your evidence.  Arbitration involves presenting evidence, and you want to make it easy to follow for everyone involved in the proceedings.  Arrange your witnesses.  Talk to your witnesses beforehand to make sure they are able to attend.

Parties to a CCMA arbitration should avail themselves of their rights to peruse documents or other relevant evidentiary material that will be relied upon by the other party to support their case.  The Rules for the Conduct of Proceedings before the CCMA (“the Rules”) allow for the disclosure of evidentiary material subject to the fulfilment of certain requirements.

 

RULE 29 OF THE CCMA RULES

 

Rule 29(1) of the CCMA Rules provides that either party to a pending arbitration may request the other party to disclose any documents or material relevant to the dispute.

For the request for disclosure of documentation to be compliant with the Rules the requirements are: (1) that a request for a CCMA arbitration must have been filed; and (2) that a request for disclosure of documents or other evidentiary material must be made at least fourteen (14) days prior to the hearing date of the arbitration.

Once a request in terms of Rule 29 of the Rules has been duly made, the party to whom the request is made must respond to the request within five (5) days from the date on which the request was received, as prescribed by Rule 29(2) of the Rules.

Rule 29(3) also allows the presiding Commissioner, either before or during the proceedings, and of his own accord or on application, to make an order for disclosure of relevant documents or other evidence.  The parties may also reach agreement under Rule 29(4) on the disclosure of documents or other relevant evidence.

 

CONCLUSION

 

Preparation for a CCMA arbitration is crucial, and this includes ensuring that you know the other side’s case, by requesting disclosure of documents or other evidentiary material relevant to the dispute.

You are welcome to contact our labour department should you, or your company, require legal representation and assistance with a CCMA arbitration, including the process of obtaining documents or other relevant evidentiary material for the hearing.

Our labour department specialises in labour disputes in the CCMA, Bargaining Council, Labour Court, Labour Appeal Court and Constitutional Court.

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