Going through arbitration at the CCMA can seem intimidating. Scorpion Legal Protection gives you 3 must-know tips to help you understand how the CCMA process works.
Arbitration is the next step in the CCMA process if the dispute cannot be resolved through conciliation. It’s a formal process (unlike conciliation, which is much more informal), and it functions like a court because you are given the opportunity to produce evidence, present your case, call witnesses, etc and the order that the commissioner awards is enforceable like an order of the court.
How do I prepare for CCMA arbitration?
1. Prepare your evidence
Arbitration involves presenting evidence, and you want to make it easy to follow for everyone involved in the proceedings. Evidence can be photos, verbal, audio, recorded video or documents. If you need to present emails, messages or WhatsApps, print them out. Gather all your documents together in the order that you are going to present them. It’s a good idea to have 4-5 copies of the whole collection of documents so that they can be distributed to everyone. This way, when you refer to a specific piece of evidence, everyone can look at the same page at the same time. It’s not a good idea to try and “surprise” the other party with documents that weren’t submitted in the beginning, usually the arbitrator will not allow this.
2. Arrange your witnesses
Talk to your witnesses beforehand to make sure they are able to attend. You (or your representative) will have a chance to ask the witness questions that will help your case, but your opposition will also get a chance to question your witness. If you need a particular witness but they don’t want to attend, you can have them subpoenaed (an official court order that they have to attend). This must be done at least two weeks before the arbitration and according to CCMA rules.
3. Get the right representation
In arbitration you are allowed to have legal representation, and considering that the process is more formal and requires evidence and presentation of a case with witnesses, etc, it is advisable to get a legal professional who knows the processes of the CCMA to help you handle your case. The only exception to this is cases dealing with the fairness of a dismissal where it is claimed that the reason for the dismissal is the employee's conduct or capacity. In this case, you are not allowed to be represented by a lawyer unless:
- the commissioner and all other parties allow it; or
- the commissioner decides it is unreasonable to expect you to deal with the dispute without legal representation.
- Do not miss your hearing, as the commissioner could make a default judgment against you for not attending and you then automatically lose the case.
- Arbitration cases are more formal than conciliation proceedings and should be treated seriously.
You may also be interested in:
Step-by-step guide on going to the CCMA
Unfairly dismissed for not reporting to work
Retrenchment myths debunked
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* This is only basic advice and cannot be relied on solely. The information is correct at the time of being sent to publishing