GOVERNANCE OF THE INQUIRY PROCESS

What is an Inquiry by Arbitrator (“Inquiry”)? 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 Inquiry? Section 188A of the LRA.

Does Tokiso have Rules that govern an Inquiry? Yes. Rule 34 deals with how to request an Inquiry.

What gives Tokiso the authority to conduct Inquiry 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 Inquiry will be conducted in accordance with:

• Section 188A of the LRA;
• Tokiso LRA Rules;
• 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 Inquiry 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 INQUIRY

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

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

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

• If the employee earns below the annual threshold (currently 211 596.30 per annum), the employee must agree to the Inquiry 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 Inquiry or at the time they are advised of the allegations (s188A(5)).
• A collective agreement provides for the Inquiry and the employee is bound to that collective agreement (individual consent is then not required) (s188A(1)).

Who appoints the Inquiry arbitrator? Tokiso appoints the arbitrator, unless parties agree to an arbitrator. (Rule 34(6))

Who can act as the Inquiry arbitrator in an Inquiry? Tokiso shall only appoint a commissioner accredited by the CCMA. The parties may agree to an arbitrator from Tokiso’s broader panel. Rule 34(6)

Who pays for the Inquiry? The employer must pay Tokiso for the Inquiry. Tokiso will in turn pay the Inquiry arbitrator. Electronic payment to Tokiso will be required before the Inquiry is confirmed. (s188A(3)(a) Rule 34(3))

How do I refer an Inquiry to Tokiso? You need to complete the form on the Tokiso Website 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 INQUIRY 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 Inquiry be held? It can be held at the employer’s premises, or another venue in the geographical area where the employee works. Tokiso can assist in arranging a venue.

Who determines the date of the Inquiry? The parties may agree the date and time of the Inquiry, otherwise Tokiso shall determine the date and time in consultation with the parties. Rule 34(7)

How much notice must be given to the parties? The parties must be given at least three days’ notice of the hearing. Tokiso will schedule the matter within two days from receiving the notice and payment for the Inquiry. (Rule 34(5))

THE AWARD

What outcome is given? The outcome is an award which is final and binding on the parties. The Inquiry arbitrator may issue one award addressing both the merits, and if guilty the appropriate sanction, alternatively two separate awards for merits of the allegations, and if found guilty, 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 Inquiry. The Inquiry arbitrator may issue two parts to the award – one on the merits of the case, and if the employee is found guilty of any of the allegations, then an award on the appropriate sanction.

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.  (Section 188A(8))

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.