What is an Arbitration?

An Arbitration is part of the process that is followed when a dispute, for example unfair labour practices or unfair dismissal is referred to the DRC (MIBCO Dispute Resolution Centre) or CCMA (Commission Conciliation Mediation and Arbitration).

Arbitration is a formal process.  During an Arbitration a Commissioner is appointed.  Both parties, the Respondent (Employer) and the Applicant (Employee), needs to lead evidence.  The Commissioner will determine on a balance of probabilities, whether the dismissal was fair or not, or whether the actions of the Employer amounts to Unfair Labour Practice.

It is therefore important for parties to prepare their evidence prior the Arbitration.  Parties need to ensure they have all documents and witnesses ready to support their case at Arbitration.

The burden of proof for the (Employee) Applicant is to show that dismissal did occur.  Thereafter the burden of proof lies with the Respondent (Employer) to show that the dismissal was fair.

Each party will then be allowed to represent their case with the other party having an opportunity to cross question such evidence.  After the Respondent (Employer) present their case, the Applicant will have the opportunity to cross examine evidence.  Thereafter the Applicant will present their case and the Respondent will then be afforded an opportunity to cross examine the evidence.

During the procedure the Commissioner is also allowed to ask questions for clarity.

Both parties will then have the opportunity to present closing arguments to the Commissioner.

The Commissioner must issue an award within fourteen (14) days after the date of the arbitration hearing and usually addressed the following:

• Details of hearing and representation;
• Issue to be decided;
• Background to the issues;
• Survey of evidence and arguments;
• Analysis of evidence and arguments;

In a Nutshell:  Arbitrations are a complex process.

As the ruling have an effect on the parties. If the award is in the Applicant’s favour, finding that the Respondent (Employer) actions are unfair, the Commissioner will award a penalty.  The penalty may take the following forms: monetary compensation, re-instatement, re-employment an order for the Respondent to correct the Unfair Labour Practise.  The Commissioner can rule in favour of the Respondent and then the Applicant can walk out of this process with nothing. 

Contact MISA to evaluate your dispute and provide you with the necessary assistance and/or advice.

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