GOVERNANCE OF THE LRA ARBITRATION PROCESS
What is arbitration? Arbitration is a formal hearing where parties to a dispute present evidence and arguments on the dispute to the arbitrator. The arbitrator then considers the evidence and argument and makes a finding on the merits of the case.
What legislation governs an arbitration? Section 138 of the Labour Relation Act 66 of 1995 (“LRA”) applies to all disputes referred under the LRA to Tokiso. All other disputes referred to Tokiso for arbitration are heard under the Arbitration Act 42 of 1965.
Does Tokiso have Rules that govern LRA disputes? Yes. Tokiso LRA Rules 18 to 23 deals with how to refer a dispute and the proceedings before arbitration. All cases other than LRA disputes are governed by Tokiso’s general Arbitration Rules.
What gives Tokiso the authority to conduct an arbitration under the LRA? Tokiso is a CCMA accredited private agency in terms of section 127 of the LRA. In terms of our accreditation, we may conduct arbitration processes. Tokiso requires the consent of the parties to conduct the arbitration, and such consent can be in a contract of employment, collective agreement or an agreement at the time the dispute arises.
How is communication done? All communication must be directed through Tokiso and copied to the other party. 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.
REFERRING A LRA DISPUTE TO ARBITRATION
How do I refer an arbitration to Tokiso? You need to complete the arbitration form on the Tokiso Website and submit it.
Who refers a dispute to arbitration? It is normally the employee who refers a dispute to Tokiso.
By when must a party refer a case to arbitration? The referring party must refer an unresolved dispute within 90 days from the date that the certificate of outcome is issued.
What if I refer my dispute later than the required timeframes? You need to apply for the late referral to be condoned.
Who appoints the arbitrator? Tokiso appoints the arbitrator unless parties agree to an arbitrator.
Who can act as the arbitrator? Tokiso shall only appoint a commissioner accredited by the CCMA. The parties may agree to an arbitrator from Tokiso’s broader panel.
Who pays for the arbitration? The employer must pay Tokiso for the arbitration because Tokiso cannot offer a statutory service that is less beneficial to an employee than that offered by the CCMA. Tokiso will in turn pay the arbitrator. Electronic payment to Tokiso will be required before the arbitration is confirmed.
Can Tokiso hear the arbitration if the dispute was conciliated by the CCMA or a bargaining council? Yes, if the parties have agreed to refer the arbitration to Tokiso.
THE ARBITRATION LOGISTICS
Where can the arbitration be held? It can be held online, at the employer’s premises, or another venue in the geographical area where the employee works. Tokiso can assist in arranging the online process or a physical venue.
Who determines the date of the arbitration? The parties may agree the date and time of the arbitration. In the absence of agreement, Tokiso shall determine the date and time of the arbitration.
How much notice must be given to the parties? The parties must be given at least 21 days’ notice of the arbitration hearing. Tokiso will schedule the matter within two days from receiving the referral to arbitration and payment for the arbitration.
THE ARBITRATION PROCESS
Is the arbitration process private and confidential? Not necessarily. The arbitrator can determine who can be in an arbitration process based on the interests of fairness to the parties. The award is not confidential and is a public document.
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. Legal representation is allowed, except for disputes concerning misconduct and incapacity dismissals; in these disputes, the parties may agree to legal representation or a party to the dispute may apply to the commissioner to allow legal representation.
Is the arbitration recorded? Yes. The digital recording can be made available to the parties at request.
What process will the arbitrator follow? Normally, the arbitrator hears the evidence of each of the parties. The parties will be allowed to present their case, submit documents, call witnesses, cross examine the other party’s witnesses and present argument on their cases. The arbitrator may also try to resolve the case by agreement.
What if a party is unrepresented? The arbitrator will guide parties in the process and it is not expected that parties are versed in the arbitration process.
What decisions can the arbitrator make? The arbitrator will determine the merits of the dispute. The arbitrator will also make all decisions on the process, and other preliminary matters including but not limited to legal representation, what evidence is admissible, condonation, postponements and jurisdictional issues.
What if a party or both parties do not attend the arbitration? If the referring party (the employee) does not attend, the arbitrator may dismiss the case and the case will be closed. If the responding party (the employer) does not attend the arbitration, the arbitrator may proceed with the arbitration in the absence of the responding party and issue the award. The arbitrator may also decide to postpone the case if a party is not present.
THE OUTCOME AT ARBITRATION
What is the outcome of arbitration? The arbitrator will issue an award.
What is the status of the award? The award is final and binding.
What if a party does not comply with the award? The award can be made an order of court by the Director of the CCMA by completing the CCMA form LRA 7.18: Application to certify CCMA award & Writ of Execution.
WE CAN HELP
You are welcome to contact Tokiso for advice and guidance on the process at 011 853 6300 or firstname.lastname@example.org. Tokiso will not give advice on the substantive issues of a case due to our independence.