On 2 September 2011, the Commission for Conciliation Mediation and Arbitration (CCMA) published Guidelines on Misconduct Arbitrations (Guidelines) that will come into effect on 1 January 2012.

The Guidelines have been drafted taking into account prevailing legislation and recent case law. The Guidelines aim to promote consistent decision-making and enjoin arbitrators to adopt the approach set out in the Guidelines.

While arbitrators have a discretion to determine the form in which an arbitration is conducted, such discretion is not unfettered. The Guidelines regulate the manner in which arbitrations should be conducted, the evaluation of evidence, assessing procedural and substantive fairness and determining an appropriate remedy.

Attorneys, Employee Relations and Human Resources practitioners should have regard for the Guidelines when preparing for arbitrations at the CCMA. For instance, it would be advantageous if closing arguments were structured in the same manner in which arbitrators are obliged to hand down their arbitration awards. One should also take heed of the prescribed factors that the arbitrator has to consider in determining the appropriateness of sanction. Practitioners should ensure that evidence is led addressing all such factors.

The Guidelines are general in application and are not intended to address every issue that may confront an arbitrator during arbitration proceedings. However, by setting out a uniform standard for the conduct of arbitration proceedings, it is likely that the Guidelines will result in more consistent arbitration awards in relation to misconduct dismissals. Considering that the overwhelming majority of disputes referred to the CCMA are misconduct dismissal disputes, this should be good news for anyone seeking clarity on the legal position of such dismissals. It is envisaged that the CCMA will publish additional guidelines addressing further issues that frequently arise.

Melanie Hart