Introduction
Welcome to Part 2 of our series on navigating representation at the Commission for Conciliation, Mediation and Arbitration (CCMA). In this instalment, we explore the intricacies of arbitration, the second process employed by the CCMA. Just as in Part 1 where we explored conciliation, we aim to simplify the complexities of representation and procedure at the CCMA.
As a quick recap, the Rules for the Conduct of Proceedings before the CCMA (“the Rules”) serve as the guiding framework for the CCMA processes, which extend to Bargaining Councils as well. Rule 25 in particular deals with representation before the CCMA.
Arbitration, unlike conciliation, involves a more formal adjudicative process where an independent arbitrator makes a binding decision on the dispute. This phase often requires the presence of representatives, though not all cases warrant it. Rule 25 of the CCMA outlines the criteria for representation, emphasizing that it’s not an automatic entitlement.
Let’s delve deeper into understanding the arbitration process at the CCMA, shedding light on its nuances and the role of representation in ensuring fair outcomes for all parties involved.
Arbitration
In the event that conciliation fails to resolve the dispute, the matter proceeds to arbitration. Typically initiated by the referring party, often the employee, through the submission of a request for arbitration (Form 7.13) to the CCMA, arbitration marks a shift towards a more formal hearing.
During arbitration, evidence is presented, and witnesses are called upon to testify. The Commissioner presiding over the case listens to the evidence from both parties and ultimately renders a decision known as an award. Unlike in conciliation, where parties seek a settlement, arbitration involves a binding decision by the Commissioner based on the evidence presented.
Legal representation during arbitration is subject to certain conditions. In cases involving dismissal for misconduct or incapacity (i.e. poor work performance and ill health), or disputes over owed money, an application for legal representation must be made. The party seeking representation must apply to the CCMA, with the opposing party having the opportunity to contest the application. The CCMA evaluates both the application and opposition before ruling on whether legal representation is permitted.
However, there are instances where legal representation is automatically permitted, without the need for an application. Examples include disputes such as demotion, discrimination, retrenchment, suspension, jurisdiction (the authority of the CCMA to hear and determine a case) and in limine hearings (before the merits of the main issue in dispute is heard – it addresses any queries or technical legal points, which are raised by the parties before getting into the facts of the issue in dispute) which do not fall under misconduct, incapacity, or money owed categories. In these cases, legal representation is allowed without the need for prior approval.
Before engaging legal representation, parties should consider the nature of the dispute carefully, as it determines whether an application for representation is necessary or if it is automatically allowed. Understanding these distinctions can streamline the arbitration process and ensure that all parties are fairly represented.
