Once a matter is referred to the Motor Industry Bargaining Council’s Dispute Resolution Centre (MIBCO DRC), the matter will be enrolled for Conciliation, provided that the party (Applicant/Employee) referring the matter confirmed that the matter should not be enrolled for the dual process, a Con/Arb (when the arbitration takes place immediately after the conciliation).
A Conciliation is an attempt to settle the matter by agreement. It is important to note that the Employer (Respondent) is under no obligation to attend the Conciliation.
If the matter is not settled at Conciliation, the DRC will issue a certificate of non-resolution, which will enable the Applicant to refer the matter for Arbitration.
At Arbitration, both the Applicant and Respondent will have the opportunity to fully state their case, by way of evidence through witnesses and documents. The Commissioner will decide on the outcome of the dispute based on the arguments/evidence put forward by both the Respondent and Applicant, in the form of an award. The award is legally binding on both parties. An Arbitration award can either uphold the sanction (Dismissal/Warning) imposed by the employer confirming the fairness thereof, or overturn the sanction ruling it as unfair, and award the Applicant reinstatement, financial compensation or both, or direct withdrawal of the warning etc. It is important to note that both the Employer and Employee, or their representative who has legal standing, are obliged to attend Arbitration proceedings.
The big question is: What happens if a party fails to attend Arbitration proceedings before the DRC?
As per rule 31 of the MIBCO DRC rules:
In a nutshell: The commissioner may continue with the Arbitration in the absence of the Respondent if he/she is satisfied that the Respondent was aware of the Arbitration and failed to attend. This will result in the Commissioner considering the evidence of the Applicant only, and will make a ruling based only on the evidence given. The outcome will be a default award and will be legally binding on the Respondent.
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