To Arbitrate or NOT to Arbitrate?

2015-02-11 15:53

An Arbitration is one of many different forms of alternative dispute resolution methods in disputes arising from written contracts. Alternative to what, you may ask. Arbitration is an alternative to court proceedings, some say it is quicker, more cost-effective and generally more "user-friendly" than our courts.

Adv. Peter Ramsden in his book, The Law of Arbitration d Arbitration as follows:, "Arbitration is a process whereby parties to the dispute enter into a formal agreement that an independent and impartial third party, the arbitrator, chosen directly or indirectly by the parties, will hear both sides of the dispute and make an award which the parties undertake through the agreement to accept as final and binding."

Arbitrations have become a Universal option in resolving disputes and can be applied to different facets of the law, but for now, I will be focusing on its application in our Labour Law.

Our Labour Relations Act, of 1995 (LRA) established the Commission for Conciliation, Mediation and Arbitration (CCMA) which is a dispute resolution body. Of its many functions, the CCMA has been empowered to Arbitrate disputes which arise from employment agreements.

The following matters can be arbitrated, e.g. Unfair Dismissals for misconduct and incapacity; workplace forums; the interpretation and application of certain provisions of the LRA.

Persons who preside over Arbitrations are Arbitrators, but at the CCMA, they are referred as Commissioner. Depending in which forum one's matter is arbitrated in, the titles of will differ, e.g. in some bargaining councils, the presiding officer will be called a Panellist.

There are different  forms of Arbitrations such Ad Hoc Arbitrations, Institutional Arbitrations, Documents only Arbitrations, Ex parte Arbitrations, however in Labour law, I will focus on two forms of Arbitrations, that is, Compulsory and Voluntary  Arbitrations. Compulsory (Statutory)Arbitrations refer to disputes which in terms of the LRA the Commissioner MUST resolve by way of Arbitration after conciliation unless an objection is raised against the Commissioner handling the dispute. Parties do not have a right to a choice in which commissioner is chosen, as this may create the perspective of bias.

Voluntary Arbitrations are Arbitrations which are entered into voluntarily so, such as Pre-dismissal arbitrations. Section 188A of the LRA informs us that, An employer may, with the consent of the employee, request a council, an accredited agency or the Commission to conduct an arbitration into allegations about the conduct or capacity of that employee and that an employee may only consent to a pre-dismissal arbitration after the employee has been advised of the allegation levelled against him/her.

The difference between Pre-dismissal arbitrations and a normal arbitration relating to dismissals at the CCMA or bargaining council is that, the former occurs whilst the employee is still in the employment of the employer, whereas the latter takes place after the employment relationship has ended.

The consequence of Arbitrations is that whatever decision is reached by the Commissioner will be final and binding, hence Arbitrations  cannot be appealed, but are reviewable. The difference between than Appeal and Review, is that Appeals deal with the merits of the case, whereas review deals with the procedure followed during the arbitration, e.g. conduct of the Commissioner.

Depending on the type of Arbitration, i.e. the nature of dispute, its complexity, etc., attorneys may not be allowed in this process unless both parties agree to it. This may eliminate some e costs, as opposed to attorney fees in courts.

The standard of proof used in labour disputes at the CCMA is one of Balance of Probabilities, the same as in civil courts.

So which will you choose, courts or Arbitration?

Follow me on Twitter @mamaroala

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