The Commission for Conciliation, Mediation and Arbitration (CCMA) is drafting a document called Guidelines: Misconduct Arbitrations. The purpose of these guidelines is to “…promote consistent decision making in arbitrations dealing with dismissals for misconduct,” highlighting the plight of employers accused of dismissing employees unfairly.
The issues that the guidelines seek to address include how an arbitrator should conduct the proceedings, how evidence should be valued for the purpose of making an award, how to assess the procedural fairness of a dismissal, how to assess the substantive fairness of a dismissal, and how to determine the remedy for an unfair dismissal. Once the CCMA publishes the final document you’ll be able to use the guidelines as a useful tool to direct you on what you need to present to commissioners at arbitration.
How the Draft Guidelines Help Entrepreneurs
- Item 10 of the guidelines will make it compulsory for arbitration awards and rulings to be lawful, reasonable and procedurally fair in terms of section 33 (1) of South Africa’s Constitution. This could assist entrepreneurs asking the labour court to overturn unfair dismissal decisions made against them. Business owners can, in other words, bring their review applications on the grounds that the CCMA award breached these constitutional provisions.
- To an extent, the guidelines standardise the manner in which the arbitration hearing is conducted. This should make it easier for entrepreneurs to know what to expect at the CCMA.
- The draft document also lays down rules for the assessment of evidence by arbitrators. This could reduce the temptation of arbitrators to ignore evidence brought by an entrepreneur.
- The fact that the draft guidelines go into detail as to what constitutes substantive fairness will assist entrepreneurs in their preparation for hearings and in their presentation of evidence. For example, the guidelines state that differing circumstances can justify different sanctions even where the two employees were charged with the same offence.
- The elements of fair disciplinary procedure are also explained, which will make it easier for entrepreneurs to avoid procedural pitfalls.
- The draft guidelines also set out the procedure for the discipline of shop stewards.
- The proposed guidelines reinforce the principle that the legal onus is on the employer to prove the fairness of the dismissal. This will remind entrepreneurs that they need to take extreme care in disciplining employees fairly and in gathering and presenting proof of this.
A Word of Caution
The draft guidelines, although not yet complete, make up a thorough and well thought out document that has the potential to add a great deal of clarity to the law of dismissal. However, it still remains to be seen whether:
- Commissioners will all interpret these guidelines, once they are finalised, in the same way
- The “consistent decision making” desired by the CCMA will be achieved
- Fewer defective arbitration awards will be made
Next steps for executives
We can be optimistic that if these guidelines are taken seriously by commissioners, arbitration awards will begin to be more consistent and less reviewable. There is no doubt that if entrepreneurs ensure that they obtain copies of the final version of the guidelines – and get proper advice on how to learn from them – they will be able to comply more successfully with the laws of discipline.