Tag: arbitration

Arbitration is not always final

Either party to an arbitration can take the arbitrator’s conduct on review to the Labour Court if they are able to prove that the arbitrator, in making his/her award, has materially broken a rule thereby committing ‘misconduct’.

Arbitrator ‘misconduct’ can and does occur in many different forms including, amongst others, bias, interrogation of witnesses, failure to keep records, ignoring of evidence, refusal to allow a party the right to question witnesses or bring evidence, failure to apply his/her mind, misconstruing of evidence, overstepping his/her authority and failure to consider statutory provisions.

An arbitrator cannot make a fair decision if he/she fails to take into account all of the material evidence placed before him/her. In the case of Crown Chickens (Pty) Ltd vs Kapp & others (2002, 6 BLLR 493 LAC) the arbitrator found that the employee had not called a colleague a “kaffer”. However, the Labour Appeal Court found that the arbitrator had, without good reason, rejected the evidence of two witnesses whose evidence indicated that the employee had called his colleague a “kaffer”. The Court therefore overturned the decision of the arbitrator, found the employee’s dismissal to have been fair and ordered the employee to pay the employer’s legal costs.

In the case of Prince vs CCMA and others (2005, 2 BLLR 159) the employee was fired for stealing money collected from the car park pay station. The CCMA arbitrator found that the employee had been involved in the theft and upheld the dismissal. The Labour Court found that the employer’s evidence had been sketchy and contradictory and that the CCMA commissioner’s award finding had not been based on the facts. The employer was required to reinstate the employee with 44 months’ back pay plus interest. The employer was also ordered to pay the employee’s legal costs.

In an unreported case (Number JR 1606/04) the employee was reprimanded by a manager for failing to phone in while absent from work. The employee left his employment, went to the CCMA and claimed that he had been dismissed. At the CCMA the employer denied that the employee had been dismissed and brought substantial evidence to show that the employee had been instructed to return to work.

During the arbitration hearing the commissioner frequently cross examined the employer’s witnesses and made remarks deriding the evidence of those witnesses. The arbitration award, which was in favour of the employee, failed to take into account the evidence brought by the employer.

The employer took the arbitrator on review to the Labour Court claiming that the award failed to take the facts into account and that the arbitrator was biased. The Court found in favour of the employer and found the dismissal to be both procedurally and substantively fair.

Parties therefore need not give up if they truly believe that, on the proven facts, they were short changed due to irregular conduct on the arbitrator’s behalf.

However, even if the aggrieved party has evidence of arbitrator ‘misconduct’ it is difficult to persuade a court judge that this evidence amounts to solid proof meriting the overturning of the award. In the unreported case described immediately above the employer used proper labour law expertise in order to prove its case. Failure to use such expertise would most likely to have resulted in the employer losing the case.

By Dr lvan lsraelstam, chief executive of Labour Law Management Consulting.

Witnesses are key in arbitration

Legal procedure makes it immensely difficult for a party at arbitration to win its case without witnesses.

For example, should an employer send, no witnesses to a CCMA arbitration the employer’s representative will find it extremely difficult to win the case because the testimony of witnesses normally forms the crucial core of the procedure at any arbitration hearing.

The procedural guidelines laid down require the arbitrator to start off by explaining the arbitration process and rules.

This entails explaining:

• that the employer is normally required to present its case first. This will be done via witnesses, documents and other evidence

• the right to cross examine that witness

• the arbitrator has the right to ask the witness questions for clarity and the employer is allowed to re-examine the witness, but only regarding the issues raised during cross examination

• once all the employer’s witnesses have been heard the employee presents his/her case according to the abovelisted steps.

Thereafter the arbitrator must:

• Hear closing statements

• Assess the evidence and make the award.

The evidence that the arbitrator assesses for purposes of deciding in favour of the employer or employee falls into three broad categories. Viz:

• Documents

• Sundry items such as video tapes, stolen goods, photos and other items relevant to the case at hand

• Witness testimony

While all three types of evidence are very important the testimony of witnesses is the most crucial of all. This is because it is difficult (and often impossible) to bring documentary or other evidence without using witnesses as a channel. For example, should the employer’s representative need to bring a letter or a video tape as evidence against the employee, the representative will need to validate the letter or video by bringing, as a witness, the author of the letter or the person who filmed the video. Thus, witnesses are normally the conduit for all other evidence.

In the case of NUMSA obo Buthelezi vs Falcon & another (2003, 10 BALR 1110) the employee was dismissed for attempting to steal paint as reported via a sworn statement from the security guard who had caught him. However, as the security guard did not give evidence at the arbitration hearing the arbitrator found the dismissal to be unfair and ordered the employer to reinstate the employee with full back pay.

Not only are witnesses the most crucial source of evidence they are also the most difficult source of evidence to utilise. There are many reasons for this:

• Unless properly managed witnesses can disappear or fail to turn up at the arbitration hearing

• Unless properly prepared witnesses forget important details

• Witnesses can be bribed or otherwise persuaded to lie

• Unless expertly handled witnesses may get nervous during the arbitration hearing. They may therefore get flustered and so make mistakes.

Due to the fact that witnesses are the most crucial means of winning a case at arbitration and, at the same time, the most difficult evidentiary element to control any party at arbitration should use the services of a labour law expert to:

• Identify well in advance all the witnesses that will be needed

• Prepare these witnesses to ensure that they will truthfully give the evidence relevant to the case of the party who calls them

• Work out which witnesses will be used to validate which documents and other evidence.

By Ivan Israelstam, CEO of Labour Law Management Consulting

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