In 2002 several amendments were introduced as part of the Labour Relations Act 66 of 1995. One significant amendment of the Act was Section 188A which provides for a pre-dismissal arbitration to be held prior to an employee being dismissed. This process will take place in the form of a formal disciplinary enquiry against an employee which is then conducted through the CCMA. Pre-dismissal Arbitrations are therefore unlike normal arbitrations at the CCMA where conciliation of a dispute has failed and the matter is then referred to Arbitration. To understand the concept and process one must understand that in the case of the pre-dismissal arbitration no dismissal has taken place and the employer with the consent of the employee, requests the CCMA to conduct the disciplinary enquiry and make a decision.
The process is as follows:
- In the case of misconduct or incapacity of an employee, an employer would issue the employee with a notice to attend a formal disciplinary enquiry which sets out the employees’ rights and the charges against him/her;
- The employer after issuing the notice must then engage with the employee and obtain his/her consent to refer the matter to the CCMA. This would be the disciplinary enquiry. Once the employee has consented to referring the matter to the CCMA the Employer must complete the CCMA form 7.19 which the employee must also sign;
- The Employer must then enquire with the CCMA and establish what amount the process will cost and then make payment to the CCMA. Proof of such payment must accompany the completed form 7.19 when it is sent to the CCMA. A copy of the form must also be provided to the employee for his/her records;
- The CCMA will then process the referral and within 21 days of receipt of the form and proof of payment notice of the hearing must be issued. Both parties must be given at least 14 days’ notice of the date of the hearing. The matter will then be heard on the date allocated and the enquiry will take place. An award will then be issued by the commissioner within 14 days after close of proceedings;
Although a pre-dismissal arbitration is unlike a normal arbitration in the CCMA the same provisions generally apply. These provisions are set out in Section 138 of the Labour Relations Act and include the following:
each party has the right to call witnesses and each party is entitled to cross examine the other party’s witnesses;
- The commissioner at the CCMA has the power to conduct the hearing in a manner considered appropriate to determine the matter fairly and quickly, taking into account the substantial merits of the matter;
- The parties to proceedings may be represented by:
- A co employee;
- A director or employee if the party is a juristic person;
- Any member or official of a parties registered trade union or registered employees organisation;
- A legal practitioner, only by agreement between the parties
- The commissioner is empowered to proceed with or postpone a pre-dismissal arbitration if any of the party’s fails to appear;
- The arbitration award is final on binding on both parties and can be made an order of court;
- An order for costs may be included if a party acted in a frivolous or vexatious manner in the hearing or by proceeding or defending the hearing.
- If the employee is not happy with the result of the hearing, he/she can only apply for a review at the Labour court
In the case of a pre-dismissal arbitration an independent person is appointed by the CCMA to preside over the hearing, therefore eliminating any chance of bias or doubt regarding fairness to both parties. The process is also costs efficient compared to the costs which an employer would normally incur in instituting and conducting a disciplinary enquiry.
Taking all the above into account the inclusion of a “referral to pre-dismissal arbitration” clause into a contract of employment would be a genuinely good idea for an employer. An employer must however keep in mind that he may only include a referral to pre-dismissal arbitration clause into a contract of employment if an employee earns more than the amount as specified in terms of Section 6 (3) of the Basic conditions of employment Act. If a clause to this effect is included into a contract of employment and signed by the employee, the employer will not need the consent of the employee to apply to the CCMA for the hearing to take place.