Although we, as attorneys, do run arbitrations for our Clients we do get calls from time to time about how arbitrations should be run. This is a very basic document and should be read in conjunction with both the Labour Relations Act and the Rules and Regulations of the CCMA. Furthermore, the CCMA has put out an outline of a working document on how commissioners ought to run both conciliations and arbitrations and that document is vital to be read and understood before anyone undertakes to run an arbitration.
This outline is purely the bare bones of the approach to an arbitration and some of the preparation that is needed.
- An arbitration is a case that is run on legal grounds and is before an arbitrator who will make a decision at the end of the case based on the evidence before him or her;
- A case put before the arbitrator is completely new and no reliance should be placed on evidence having been told or led at previous hearings or discussions. The evidence must be repeated again at the arbitration and the evidence should be supported by paperwork and or witnesses;
- In preparation for the arbitration the party representing either the applicant or the respondent should put together a full bundle of documents properly numbered which would then reflect all the evidence which is going to be spoken about and proved. This bundle once numbered should be copied four times so when a representative arrives at the arbitration there are five complete bundles. These bundles will be distributed just before the arbitration in order to ensure that when the representatives refers to a particular page then everyone can look at the same page at the same time. There can be no surprises and a person who wishes to introduce a document half way through the arbitration is normally disallowed that opportunity;
- A full list of witnesses should be gathered beforehand. These witnesses will be carefully chosen in order to ensure that the evidence the representative wishes to lead is underlined by that witness. The witness will come to tell evidence and what is needed for your particular case. It’s no good bringing a witness to an arbitration when you are not sure what the witness is going to say;
- If the witness is needed to be there and is reluctant you can issue a subpoena. This subpoena will be done in accordance with the rules of the CCMA in accordance with a particular document outlined by the CCMA. This must be done at least two weeks before the arbitration. The subpoena application must be properly done in accordance with the rules;
- There is no value in bringing a witness to say something when you don’t have faith in that witness being able to repeat the truth;
- Normally the burden of proof lies on the company (the respondent). The company will bring its evidence first in most circumstances unless the company denies that a dismissal exists. If the representative is representing the company, the company can’t have all their witnesses sitting in the room whilst one of their witnesses is giving evidence. The value of the witness evidence should not be watered down allowing them to listen to other witnesses from the same side;
- However if the other side is giving evidence then all your witnesses are most welcome and should be present to listen to the evidence so that they can respond to same in due course when they are called;
- The representative should keep a strict record or even a recording of each and every witness and would specifically record when the witness says something that is wrong. If the witness has said something that is wrong then this must be challenged and an alternate version should be given to that witness. If a statement is not challenged the arbitrator will accept the statement as being unchallenged and the truth, it is therefore incumbent upon the representative to not only keep a record of what the witness has said but to challenge each and every point which is incorrect;
- Once each witness has been challenged the calling party has a chance to resurrect the evidence of that witness by re-examining them;
- After all the witnesses have been called and your case has been adequately proved, you would then close your case allowing the other side to start their evidence and witnesses;
- The other side would go through the same exercise where a witness would be called, evidence would be given and that evidence would in turn be challenged;
- Both parties having closed their case then has a chance to give final closing statements. These closing statements can be done in writing and if complicated it could be requested of the commissioner (arbitrator) to give some time in which to address all the issues raised by all the witnesses in your closing argument which would then be reduced to writing and sent to the arbitrator within a specific recorded time;
- Many arbitrators do not allow this postponement to happen and would like you to address the arbitrator on your closing statements immediately;
- The secret of the closing statements is to look at each one of your witnesses, underline what they have said and outline to the commissioner as to why they have proved your case to be true and correct. You would also then look at each and every one of the witnesses from the other side to explain why they were wrong and why they should not be believed. It would also be important at this point to have a look at the bundle of documents to show the arbitrator that these documents have been proved and they in turn prove your case;
- After the closing statements the arbitrator has fourteen days in which to make a ruling;
- This ruling can be challenged by taking it on review to the Labour Court, this can only be done in specific cases and you should refer to an attorney at this point if you are unhappy with the arbitrators ruling and award.
MICHAEL BAGRAIM BA. LLB.
BAGRAIMS ATTORNEYS (LABOUR LAWYERS)