188A Inquiry by Arbitrator

As an accredited private agency, Tokiso offers inquiry by arbitrator processes in terms Section 188A of the Labour Relations Act. This is an arbitration conducted in place of a disciplinary or incapacity hearing.

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GOVERNANCE OF THE IBA PROCESS

What is an Inquiry by Arbitrator (“IBA”)? This is a final and binding arbitration conducted in terms of the Labour Relations Act (LRA)  in the place of a disciplinary or incapacity (performance / ill health) hearing.

What legislation governs an IBA? Section 188A of the LRA.

What gives Tokiso the authority to conduct IBA processes? Tokiso is a CCMA accredited private agency in terms of section 127 of the LRA. In terms of our accreditation, we may conduct Inquiry by Arbitrator processes (s188A(10)).

What policy determines the process? The arbitration will be conducted in accordance with:

  • Section 188A of the LRA;
  • CCMA Rules (Tokiso has adopted the CCMA Rules for its statutory processes);
  • any applicable collective agreement between the parties;
  • any applicable company policy and procedure;
  • any applicable provision in a contract of employment; and
  • any applicable agreement reached between the parties in relation to the process.

Parties must provide the arbitrator with any collective agreement, policy, contract or agreement that is applicable.

How is communication done? All communication must be directed through Tokiso and copied to the other party, including any closing arguments. Where a party communicates with the panellist through Tokiso about the case before that panellist, Tokiso shall copy both/all parties on any response. This maintains the independence and transparency of the process.

 HOW TO INITIATE AN IBA

Who initiates the IBA? It is the employer who refers the IBA to Tokiso. The employer is the applicant in the case.

When can an employer initiate an IBA? When an employer intends bringing charges against an employee for misconduct or incapacity, the IBA can be initiated.

Must the employee agree to the IBA? Yes. The consent requirements are:

  • If the employee earns below the annual threshold (currently R205 433.30), the employee must agree to the IBA at the time or after the employee has been advised of the allegations against them (s188A(4)).
  • If the employee earns above the annual threshold, the employee can agree in their contract of employment to the IBA or at the time they are advised of the allegations (s188A(5)).
  • A collective agreement provides for the IBA and the employee is bound to that collective agreement (individual consent is then not required) (s188A(1)).

Who appoints the arbitrator? Tokiso appoints the arbitrator, unless parties agree to an arbitrator.

Who can act as the arbitrator in an Inquiry by Arbitrator? Only a commissioner accredited by the CCMA.

What if the arbitrator the parties have agreed to is not accredited? You can hear the matter as a private arbitration under the Arbitration Act and confer to the arbitrator the same authority to make a final and binding arbitration at the disciplinary/incapacity hearing. Alternatively, you need to choose an accredited arbitrator to hear it under the section 188A LRA.

Who pays for the IBA? The employer must pay Tokiso for the IBA. Tokiso will in turn pay the arbitrator. Electronic payment to Tokiso will be required before the IBA is confirmed.

How do I refer an IBA to Tokiso? You need to complete the form on the Tokiso Website (known as a 7.19 form) and submit it with proof of the employee’s consent. If the parties have agreed to an arbitrator, this can be confirmed on the form. Otherwise, Tokiso will appoint a panellist on receipt of the form and send an invoice to the Employer to pay before the notice of setdown is sent to the parties.

 THE IBA PROCESS AND LOGISTICS

Can an employer suspend an employee pending the conclusion of the hearing? Yes (s188A(12)).

Who can represent a party? For the employee, a co-employee or a union official or office bearer. For the employer, a director or employee or an employer organisation official or officer bearer. The parties may agree to legal representation, or a party can apply for legal representation in terms of Rule 25(1)(c). (s188A(5))

Can you have a subpoena issued? Yes. The subpoena is issued in an identical manner to the CCMA. The Director of Tokiso will sign the subpoena form. The form (referred to as form 7.16) must be completed and submitted to Tokiso, accompanied with a motivation for why the evidence is necessary. (s142(1), Rule 37)

Where can the arbitration be held? It can be held at the employer’s premises, Tokiso’s offices or another venue in the geographical area where the employee works.

Who determines the date of the IBA? The employer determines the date, subject to the availability of the appointed arbitrator.

How much notice must be given to the parties? The parties must be given at least seven days’ notice of the hearing. Tokiso will schedule the matter within seven days from receiving the notice and payment for the IBA.

THE AWARD

What outcome is given? The outcome is an award which is final and binding on the parties. There may be one award addressing both the merits of the charges, and if found guilty, decide on the sanction. The arbitrator may also issue two separate awards for the merits, and if found guilty, the decision on the sanction.

Who gets the award? The award/s will be sent to the parties and/or their representatives simultaneously within 14 days following the completion of the arbitration.

Can you appeal or review the award? The award is final and binding on the parties. Either party may review the award at the Labour Court. The employee cannot refer the case to the CCMA.

WE CAN HELP

You are welcome to contact Tokiso for advice and guidance on the process at 011 853 6300 or info@tokiso.com. Tokiso will not give advice on the substantive issues of a case due to our independence.