Name of presenter: Kate Savage Title of Presentation : CCMA 2012 GUIDELINES FOR MISCONDUCT ARBITRATIONS :

1. SASLAW SEMINAR 28 FEBRUARY 2012 Name of presenter: Kate Savage Title of Presentation: CCMA 2012 GUIDELINES FOR MISCONDUCT ARBITRATIONS: What do they mean in practice?

2. CCMA 2012 Guidelines for Misconduct Arbitrations Published on 2 September 2011 in the Government Gazette. Issued by the CCMA in terms of section 115(2)(g) of the LRA and became effective on 1 January 2012 Author and Date

3. Purpose of the Guidelines • Where relevant to the matter being considered in the arbitration proceedings, a commissioner is obliged to take into account : • any code of good practice that has been issued by NEDLAC; and • any guidelines published by the CCMA • The aim of the guidelines on misconduct arbitrations is topromote consistent decision-making in arbitrations dealing with dismissals for misconduct • The guidelines are policy of the CCMA, developed in accordance with judgments binding on it, and should be applied unless the arbitrator has good reason for favouring a different interpretation of the law in which case reasons must be provided

4. Interpretation of LRA and judgments • The CCMA and its commissioners must interpret and apply the LRA and other legislation in accordance with judicial decisions of courts binding on it • The interpretation of the most recent binding decision of the highest court dealing with a provision is relevant. • Where there are inconsistent decisions of the Labour Court, the arbitrator must consider these and decide which decision to follow, giving reasons for doing so. • Commissioners are to exercise caution when considering decisions of the Industrial Court : pre-1995 jurisprudence must be consistent with the principles of interpretation set out in section 3 of the new LRA Author and Date

5. Conduct of arbitration proceedings • Reiterates the discretion to determine the form in which an arbitration is conducted and that arbitration is not a court: section 138(1) requires arbitrations to be conducted in a manner that allows fair and quick determination with minimum of legal formalities in which substantial merits dealt with. • Arbitrator to be impartial and section 138(2) reiterated (evidence, cross examination, closing arguments) 6 arbitration stages typically • De novo hearing: not a review of disciplinary process but can refer to the record of this process and draw interferences if inconsistencies • Form of proceedings best dealt with after narrowing the issues and parties to be made aware of the arbitrator’s powers and procedure Author and Date

6. Six arbitration stages STAGE 1: Introduction STAGE 2: Preliminary issues • commissioner confirms CCMA jurisdiction • identification of parties: commissioner may correct identity • legal representation • must decide preliminary point before proceeding with arbitration unless evidence required and practical to hear it and merits at same time. Only adjourn if complex Author and Date

7. Six arbitration stages STAGE 3: Narrowing the issues • record agreement on common cause issues, what in dispute and what arbitrator is required to decide STAGE 4: Hearing of evidence • arbitrator should advise parties how evidence to be presented given complexity of dispute, representation etc • inquisitorial approach often appropriate ensuring s138(2) • witnesses excluded from hearing room Author and Date

8. Six arbitration stages STAGE 5: Argument • parties should be invited to present argument • in complex cases arbitrator may in addition allow written argument within 7 days • subsequently the arbitrator can request oral or written submissions before making the award STAGE 6: Award (also Part C of the Guidelines) • award with brief reasons to be handed down by CCMA within 14 days of arbitration • structure of the award (clauses 48 - 54) • requires analyzing evidence Author and Date

9. Part D: Approach to procedural fairness • Differentiates between where there is a workplace procedure and where there is not No workplace procedure • Emphasisesapplication of item 4 of Schedule 8: if no workplace procedure, item 4 does not require formal inquiry. Not a criminal justice model, flexible. • Test procedural fairness against 5 items set out in Schedule 8 (item 4): Author and Date

10. Applying Schedule 8 Author and Date 1. Notify employee of allegations in form and language that can be reasonably understood 2. Reasonable time to prepare a response 3. Assistance of trade union representative or fellow employee in preparing response and stating case in any enquiry (only if organizational rights granted to trade union rep) 4. Opportunity to state a case in response to allegations (in writing/in a meeting – no obligation to hold formal hearing) 5. Communicate decision , preferably in writing, and notify of right to refer to CCMA

11. Applying Schedule 8 Departures from the code may be justified. In exceptional circumstances, an employer can dispense with the procedures contained in the Code (gives examples such as absence without leave). • Where there is a defect, arbitrator must determine if defect was material. Important: Author and Date

12. Procedural fairness: Where workplace procedure exists Collective agreement contract unilaterally imposed • The Code (Schedule 8) is not a substitute. • Differentiates where procedure is contained in: not tested against Code tested against Code • tested against Code

13. Workplace procedure Author and Date • Approach to procedural fairness will be determined by whether there is such a procedure and its legal status but if there is a workplace procedure in place, arbitrator must have regard to it • Where there is a defect, arbitrator must determine if defect resulted in unfairness. Only find unfairness if material prejudice arises. Adjustment of policy to meet particular exigency or address situation not in policy or procedure does not warrant a finding of procedural unfairness • If legal representation permitted, it should be allowed. • Disciplinary action against trade union representative: object of consultation to advise and communicate but there must be prejudice if procedural unfairness found.

14. PART E: substantive fairness Author and Date Approach to substantive fairness

15. Substantive fairness Author and Date • Item 7 of the Code of Good Practice provides guidelines for dismissals and constrains the power of the arbitrator to determine fairness CCMA Guidelines provide a checklist of factual enquiries to be undertaken by the arbitrator in misconduct cases: • workplace rule or standard was contravened (arbitrator may decide taking “judicial notice” of the rule or decide it on evidence, determine if justification for contravention) • whether valid or reasonable (arbitrator not to second-guess but determine validity and reasonableness, if contrary to public policy or not, reiterates sectorally appropriate rules) • employee aware or can reasonably have been expected to be aware of rule • consistently applied

16. Substantive fairness Author and Date • whether dismissal an appropriate sanction - balanced and equitable assessment. Was employer’s imposition of dismissal fair and was employment relationship intolerable considering: • gravity of contravention: the sanction as a response? • aggravation /mitigation • consistency: in application of rule and in sanction; was there a legitimate basis to be provided for differentiating (fair and objective; reiterates collective/individual warnings; employees to be made aware of change of approach to misconduct) • enquiry into factors which may have justified different sanction: is it a rational operational response to risk management? Not a closed list: factors to be considered include employee’s circumstances, nature of job, circumstances of contravention

17. PART F: REMEDIES Section 193 of LRA - reinstatement - re-employment or - compensation Author and Date

18. Reinstatement Author and Date Reiterates this as primary remedy - must reinstate (or re-employ) unless employee does not seek this, continued employment intolerable or not reasonably practicable for employer Evidence must establish if no reasonable prospects of an employment relationship being restored and employer must satisfy this burden (clause 113) or not reasonably practicable to reinstate Conduct of employee pre and post-dismissal, including at disciplinary and arbitration proceedings has a bearing

19. Re-employment Author and Date Wide discretionshould consider skills and experience required, remuneration and benefits and status. More appropriate where incapacity or operational requirements dismissal? May be justified in a misconduct dismissal. Clause 118 provides for 2 circumstances: 1. where reinstatement inappropriate e.g. where different t’s + c’s appropriate 2. where circumstances prevent reinstatement Arbitrator must specify date, t’s and c’s with any benefits from dismissal to re-employment. Can impose a warning. Note: - award of reinstatement or re-employment can be made effective from a date more than 12 months prior to the award. (clause 125) - Compensation cannot be awarded with an award of reinstatement or re-employment irrespective of whether there is a finding of procedural unfairness (clause 129)

20. Compensation Author and Date just and equitable and not exceed 12 months Arbitrator must have sufficient evidence. Sets out purpose – to make good employee’s loss and not punish employer – but should be used to express “displeasure at a seriously unfair dismissal” (clause 132) so there may be a punitive element Clause 133: compensation for substantive unfairness 15 factors listed that should be considered by the arbitrator:

21. Compensation 1.employee remuneration and benefits 2.time elapsed since dismissal 3. alternative employment 4. steps to mitigate losses 5. financial loss suffered by employee 6. prospects of future employment 7. failure to state case at disciplinary investigation/enquiry 8. unreasonable delay 9. whether substantive and procedural unfairness 10. extent of unfairness of dismissal 11. voluntary payments made to employee by employer over contractual and statutory obligations 12. unreasonable refusal of reinstatement where offer in good faith considering trust relationship and feasibility 13. unreasonable refusal to make substantial redress eg securing employment with another employer or offering payment 14. if conduct of employee caused loss and extent of loss 15. employer’s financial position: whether would cause disproportionate prejudice and instalments can be considered

22. Compensation Clause 135: compensation for procedural unfairness = solatium and punitive as a result of los of a fair pre-dismissal procedure Appropriateness given nature procedural unfairness and effect on employee (which may include consideration of length of service) AND just and equitable amount (can award nothing) Actual financial losses irrelevant, as are steps to mitigate losses Arbitration fee can be charged where procedure unfairness regardless of substantive fairness (clause 140)

23. Costs and section 74 BCEA Costs Section 138(10): Frivolous and vexatious.Cannot be used to compensate CCMA Section 74 BCEA Claims under BCEA can be determined by arbitrators including salary, leave and overtime but must be stated on referral form, owing for not longer than a year prior to dismissal and no compliance order issued/legal proceedings