In the event that parties at CCMA were unable to settle the matter at conciliation, the applicant (employee) can request for the matter to be set down for arbitration. Arbitration is a more formal process and is conducted in much the same manner that a disciplinary hearing would be held. At the arbitration, the commissioner records the proceedings and both parties lead evidence, which may include witnesses in favour of their version of the events. The commissioner’s role is to listen, investigate and ultimately determine which version he/she believes is more likely.
At arbitration, attorneys are permitted to be presented provided that the matter is not related to the conduct of the employee. However, even in this instance, either party may make representation to the commissioner requesting an attorney but this request may be refused. Individuals who belong to a union are entitled to be represented by a union official and employers belonging to an employer’s organisation may be represented by a fellow member of that organisation.
Once all the evidence has been presented, the commissioner will decide on the award or outcome. An arbitration award must be issued within fourteen (14) days of the arbitration hearing.
The arbitration award usually covers the following:
- Details of hearing and representation
- Issue to be decided
- Background to the issue
- Survey of evidence and argument
- Analysis of evidence and argument
Ultimately the award determines which of the two parties was the victor and the outcome.