Thursday, February 21, 2008

Commencing the Private Disciplinary Arbitration process

Commencing the Private Disciplinary Arbitration process when an employee is being accused of serious misconduct.

You have workplace rules and procedures in place, which require an internal hearing and appeal procedures and need to implement private disciplinary arbitration procedures, in terms of the Arbitration Act 42 of 1965, without this being a unilateral change to these workplace rules, whereby you will be acting consistently when implementing disciplinary procedures.

Investigate the conduct of the employee
Matters relating to serious misconduct where, in terms of existing workplace rules and procedures, dismissal of the employee would be appropriate sanction, which requires that, the matter should be investigated. When the investigation is completed and the evidence indicates that serious misconduct has taken place you will have a choice, either to proceed with an internal disciplinary hearing or to refer the matter to private disciplinary arbitration.

Confront the employee
In order to commence private disciplinary arbitration you will be required to confront the employee with the offending conduct and indicate that in terms of the workplace rules dismissal would be appropriate in the specific case.

Give the employee a choice
Now you will have the opportunity to give the employee a choice, whereby the employee may choose to resign voluntarily or agree to have the matter referred to a private arbitrator, where the private arbitrator will decide the matter and make an award which is final and binding.

Benefits of private disciplinary arbitration to the employee
The benefit to the employee is that an independent, knowledgeable and impartial individual will decide the matter. What can be fairer?

Benefits to yourself
The benefit to yourself and the employee is that the matter can be finalised within a few days and that each party can continue without the emotional stress of having drawn out compliance to statutory referrals and delays in resolving the matter, which can continue for months and years, with associated direct and indirect costs to both.


Private disciplinary arbitration is a cost-efficient disciplinary tool, which is fair to both parties. The decision-maker is independent and impartial, knowledgeable in labour law matters and will make a final and binding decision ending the dispute expeditiously.

Private disciplinary and performance arbitration can also be used to decide matters including the capacity of the employee to perform his duties due to ill health and performance of the employee in general, where his/her performance is having a detrimental effect on your business operation.

The referral to the private arbitrator

The following is a brief outline of an agreement and referral to arbitration:

The parties hereto agree to submit their dispute to the arbitrator in terms of the Arbitration Act 42 of 1965 with the exclusion of statutory procedural requirements of the Labour Relations Act 66 of 1995 and any other such labour acts and reference to any statutory dispute resolution body as prescribed by these acts:

The arbitrator (name of the arbitrator) will be required to give consideration to the facts of the dispute, which relates to the alleged misconduct of the employee, contained in a charge sheet, in terms of the workplace rules and procedures of the employer, where the alleged conduct constitutes a dismissible offence.

The arbitrator will be required to hear evidence and arguments from both parties and to decide:
1. The guilt or innocence of the employee in respect of the alleged misconduct;
2. Decide on a appropriate sanction, which may include the dismissal of the employee;
3. The arbitrator will have a wide discretion in respect of procedures to be followed prior to and during the arbitration hearing and shall in terms of this discretion be able to decide what the relevant circumstances of both parties will be when deciding on the final sanction.
Further to this the parties also agree to the following:
4. The parties agree to the conditions of service of the arbitrator or arbitration administration body, which shall bind them for the duration of the matter and ending upon the date on which the arbitration award has been published to the parties by the arbitrator.
5. Representation will be allowed/not allowed, by a representative (employee, co-worker, union representative, employer association representative or legal practitioner).
6. The arbitrator will be required to make a written award.
7. The employer shall pay the arbitrator’s fee as agreed, prior to the commencement of the arbitration process.
8. The matter will be held in the strictest confidence.