By lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawadvice.co.za
The resolution of labour disputes at the CCMA is often difficult, time consuming and costly. As a result, parties sometimes try to resolve these disputes before attending CCMA hearings. Many of these private attempts to resolve the disputes are made after the parties have received the CCMA’s official notice of set down.
One of the key pieces of information in such a notice summoning you to a labour dispute forum is the type of process you are being summoned to attend. This may be a conciliation, a con-arb or an arbitration. Should it be a con-arb or arbitration this means that you will need to prepare your case very carefully. This is because you can expect to have to participate in a court-like hearing where you will need to present your evidence and try to counteract the evidence of your opponent. One of the many facets of your preparation could be participation in a pre-arbitration meeting with your adversary.
The CCMA and Bargaining councils strongly request that the parties hold a pre-arbitration meeting. Where the parties are represented by lawyers, the holding of pre-arb meetings is compulsory. This is because such a meeting before the arbitration hearing can substantially reduce the time taken to complete the hearing. In fact, the pre-arbitration process can remove the need for an arbitration hearing altogether!
While the CCMA and bargaining councils urge the parties to hold a pre-arbitration meeting this is not compulsory. However, the parties may feel that such a pre-meeting could advantage them because it could assist their preparation for the arbitration. Some of the more important matters that may be dealt with at pre-arbitration include:
- ANY MEANS BY WHICH THE DISPUTE MAY BE SETTLED:
Here the parties discuss the possibility of ending the dispute by seeking an out of court settlement. Should this be successful the parties sign a settlement agreement, and the arbitration hearing becomes unnecessary.
- FACTS THAT ARE COMMON CAUSE:
This means that the parties identify those facts that they agree upon. This could include (but will not necessarily include) facts such as when the employee was employed, that the employee was dismissed and the reason for the dismissal. The more such facts that the parties can agree upon before the arbitration the less time the arbitrator needs to waste at the arbitration on establishing the facts.
- FACTS THAT ARE IN DISPUTE:
Areas in which the parties might disagree could include those listed under the previous heading as well as what the employee’s remuneration was or whether the employer’s treatment of the employee was fair or not. They could also include whether the employee was at the workplace on the day of the alleged incident or what time the employee arrived for work.
- THE ISSUES THAT THE ARBITRATOR IS REQUIRED TO DECIDE:
At this point the parties might try to agree, for example, as to whether the arbitrator is to decide whether the dismissal was only procedurally unfair or whether it was also substantively unfair.
- THE PRECISE RELIEF CLAIMED
The parties discuss whether the employee wants to be reinstated or wants financial compensation.
- THE SHARING AND EXCHANGE OF RELEVANT DOCUMENTS, AND THE PREPARATION OF A BUNDLE OF DOCUMENTS AND THE VALIDITY OF THESE DOCUMENTS:
The parties are asked to give each other copies of the documents they plan to use in the arbitration hearing and to compile both parties’ documents into one common bundle. This could avoid a waste of time at the arbitration hearing while parties quibble about the validity or significance of specific documents.
- WHETHER EVIDENCE ON AFFIDAVIT WILL BE ADMITTED WITH OR WITHOUT THE RIGHT OF ANY PARTY TO CROSS-EXAMINE THE PERSON WHO MADE THE AFFIDAVIT:
A pre-discussion on this issue may be necessary if any prospective witnesses are unable to attend the arbitration hearing.
It is important that you and your opponent record the content of the pre-arbitration meeting, the issues on which you agree and the issues on which you agree to disagree. Then, when these minutes are signed by both parties they can be submitted to the arbitrator and can be used to give him/her a clear idea of many of the key issues relevant to the case.
The danger of participating in a pre-arbitration hearing is that you might give away too much of your case and so give your opponent too much ammunition to use against you at the arbitration. You therefore need to use, at pre-arbitration, a person highly skilled in labour law, dispute resolution processes and negotiation.
To learn more about the availability of our groundbreaking new labour law video series called WALKING THE NEW LABOUR LAW TIGHTROPE please email ivan@labourlawadvice.co.za
