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The New CCMA Guidelines on Misconduct Arbitrations: A Wooden Stick or a Yardstick?

On 1 January 2012, the CCMA Guidelines: Misconduct Arbitrations (“the Guidelines”) came into effect. Employers, employers’ organisations, trade unions and other frequent users of the CCMA, and perhaps even Commissioners themselves, have long anticipated the publication of the Guidelines, which are contemplated by section 115(2)(g) of the Labour Relations Act, 66 of 1995 (“the LRA”). Regina Milo highlights these guidelines and shows how they impact on all stakeholders involved.

by Regina Milo

Regina Milo, Senior Associate, Edward Nathan Sonnenberg

Commissioners are obliged, in terms of section 138(6) of the LRA, to “take into account” these guidelines when they are relevant to a matter being considered in the arbitration proceedings. The stated purpose of the Guidelines is to promote consistent decision-making in arbitrations dealing with dismissals for misconduct and to provide a checklist of issues that a Commissioner is required to consider in conducting the arbitration proceedings, analysing the evidence before him, and thereafter formulating an arbitration award.

Inasmuch as the Guidelines provide a checklist for Commissioners, there can be no doubt that they also assist parties in preparing for arbitration proceedings by identifying those particular issues that should be addressed in these proceedings and, in turn, the evidence which a party should lead in that regard. In relation to the leading of evidence, the Guidelines point out that

"... an employer who alleges that a continued relationship would be intolerable must present evidence to the arbitration that demonstrates this on a balance of probabilities”

and

“... the onus is on the parties to produce suitable evidence of the factors relevant to compensation that support the submissions. Mere allegations are not sufficient”.

The first issue dealt with in the Guidelines is the manner in which Commissioners should conduct arbitration proceedings. The Guidelines suggest that the arbitration proceedings be dealt with in six stages: the preparation for an introduction of the arbitration; addressing preliminary issues; narrowing the issues; the hearing of evidence; dealing with concluding arguments; and the arbitration award. Each of these stages is discussed in some detail in the Guidelines.

There are also indications in the Guidelines that a Commissioner may take a more active approach in conducting arbitration proceedings. One such example is that various factors are articulated which a Commissioner ought to consider in exercising his discretion as to the appropriate form of the arbitration proceedings (in terms of section 138(2)) and, in particular, whether he should adopt an inquisitorial or an adversarial approach to the arbitration proceedings. Commissioners are, however, cautioned that if they elect to adopt an inquisitorial approach, they should nonetheless make sure that parties are aware of their rights to give evidence, call witnesses, question the witnesses of the other party, and address the Commissioner in closing.

The Guidelines also remind Commissioners that they are required to conduct an arbitration fairly and quickly, but must deal with the substantive merits of the dispute with the minimum of legal formalities. If it is evident that a party or its representative does not understand the proceedings and that it is prejudicing the presentation of the case (for example, where one party fails to put his version to the witnesses of the other party during cross-examination), the Guidelines provide that a Commissioner should draw this to the attention of the other party. This may, however, prove to be problematic in that this may create the perception that the Commissioner is biased.

A Commissioner also has a duty to confirm that the CCMA has jurisdiction to hear the dispute, irrespective of whether this is raised by the parties, and to ensure that the testimony given by witnesses is recorded, that he takes notes of the evidence given, and that he keeps those notes in a file. In my view, should it later be found that a Commissioner has failed to fulfil any of these obligations, this may constitute a ground for an application to review the arbitration award in terms of section 145 of the LRA. »

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