To have a chance of winning a case at CCMA a party must present proof to the
arbitrator. In the days when I arbitrated CCMA matters parties argued their cases
before me very vehemently, passionately and in great detail but often brought
little or no support for their arguments. They were then most surprised when they
lost the case.
What parties do not understand is that they are responsible for presenting clear,
relevant and persuasive facts in support of their cases. All arbitrators are
required to follow the rules of procedure and principles of justice during the
arbitration hearing. These requirements include the paramount principle that the
arbitrator must base his/her findings primarily on the facts presented at the
arbitration hearing.
It is not up to the arbitrator to bring the evidence or to show that the evidence
brought constitutes proven fact. The arbitrator merely creates the environment in
which the parties can present their evidence if they have brought it with them. In
this sense the arbitrator acts as a master of ceremonies. That is, he/she
manages the following arbitration process:
opening statements are made by each party outlining what they intend to
prove
the parties present their cases via witnesses, documents and other evidence
if the employer goes first then, each time the employer’s representative is
finished questioning one of his/her witnesses, the employee has a right to
cross examine that witness
the arbitrator has the right to ask the witness questions for clarity and the
employer is allowed to re-examine the witness, but only regarding the issues
raised during cross examination
once all the employer’s witnesses have been heard the employee presents
his/her case according to the above listed steps.
Each party presents a closing statement
The arbitrator adjourns to assess the evidence and to make the award.
While the arbitrator is required by law to give you, via the above process, every
opportunity to present the evidence that you have brought you are likely to lose
the case if you do not take full advantage of this opportunity.
In NUMSA obo Daki vs Colven Associates (2006, 9 BALR 877) the employee,
who was employed by a labour broker, was dismissed for being involved in a
fight with a colleague at the premises of the employer’s client. The client had
reported the alleged fight to the labour broker and instructed the broker to
remove the employee from the client’s premises. The labour broker then placed
the employee in its pool of people waiting for employment but ceased paying the
employee. The arbitrator decided that:
The employer’s actions constituted a dismissal
The dismissal was unfair because the employer (the labour broker) had relied
only on the allegations of the client and dismissed the employee without proof
that he had been involved in the fight.
The employer was required to reinstate the employee.
Thus, in many cases, a party may lose, not because there is no evidence, but
because he/she failed to bring the evidence to the arbitration hearing or because
the evidence was not properly presented and converted into proof.
The arbitrator’s role is to manage the flow of evidence during the hearing but not
to bring the evidence. His/her duty is to collect the evidence brought by the
parties and then adjourn the proceedings to evaluate the evidence.
Therefore, if you are an employer or an employee party and you have an
arbitration pending you must immediately:
Obtain advice form a reputable labour law expert on how to gather all the
evidence needed at arbitration
Use the labour law expert to make sure that your evidentiary documents,
tapes and other evidence are carefully sorted into the right sequence
Get assistance form the expert as to how to prepare your witnesses in a legal
yet effective manner
Ensure that your witness evidence dovetails with your other evidence
Learn from the labour law expert how to anticipate what evidence your
opponent is likely to bring and how to counteract it.
To book for our 17 September webinar on WINNING AT THE CCMA IN THE
COVID ENVIRONMENT please contact Ronni on [email protected]
or 0845217492.
