BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on 011 888 7944 or 082 852 2973 or on e-mail address: [email protected].
Prior to Corona the CCMA could request the parties to hold a pre-arbitration meeting. However, the lockdown regulations now require the CCMA to direct the parties to hold a pre-arbitration conference (pre-arb) to reach consensus on several issues including the following:
- Whether the Parties are prepared to proceed with the arbitration hearing at the employer’s premises.
- Whether the Parties are prepared to proceed with the arbitration hearing by means of a video conferencing facility.
- Acceptance of shorter periods of notice of set-down, if required.
- The admission of evidence remotely using the video conferencing facility.
- Admission of evidence by affidavit
- Any other information the CCMA or a Commissioner may require in order to exercise a discretion as to how the matter is to be dealt with and that will eliminate or limit the risk of physical proximity among the persons involved.
The CCMA and Bargaining councils strongly request that the parties hold a pre-arbitration meeting. This is because such a meeting before the arbitration hearing can substantially reduce the time taken to complete the hearing.
Even were the CCMA not to require a pre-arb it is advisable for parties to initiate such a conference. Success at an arbitration hearing requires extensive preparation. And one of the many facets of your preparation could be participation in a pre-arbitration meeting with your adversary.
Some of the matters for pre-arb other than those discussed above 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 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
Discussion on whether the employee wants reinstatement or compensation.
- THE SHARING AND EXCHANGE OF RELEVANT DOCUMENTS, AND THE PREPARATION OF A BUNDLE OF 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.
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