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Labour Relations Act, 1995 (Act No. 66 of 1995)

Commission for Conciliation, Mediation and Arbitration

Guidelines on Misconduct Arbitration

A: Purpose and Nature of Guidelines

Purpose

 

(1) These guidelines are issued by the CCMA in terms of section 115(2)(g) of the Labour Relations Act, 66 of 1995 ("the LRA"). In terms of section 138(6), a Commissioner conducting an arbitration must take into account any code of good practice that has been issued by NEDLAC1 and any guidelines published by the CCMA that are relevant to the matter being considered in the arbitration proceedings.

 

(2) These guidelines deal with how an arbitrator should—
(2.1) conduct arbitration proceedings;
(2.2) evaluate evidence for the purpose of making an award;
(2.3) assess the procedural fairness of a dismissal;
(2.4) assess the substantive fairness of a dismissal;
(2.5) determine the remedy for an unfair dismissal.

 

(3) The CCMA has issued these guidelines to promote consistent decision-making in arbitrations dealing with dismissals for misconduct. It is envisaged that the CCMA will issue additional supplementary guidelines dealing with issues that frequently arise in arbitrations.

 

 

1 In Independent Municipal and Allied Trade Union obo Strydom v Witzenberg Municipality & Others (LAC), the Labour Appeal Court (at para 6) articulated the principle stated by the Constitutional Court in Sidumo & another v Rustenburg Platinum Mines Ltd & others that the Code of Good Practice: Dismissal is binding on all commissioners in deciding on the fairness of a dismissal.