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In 2002 several amendments were introduced as part of the Labour Relations Act 66 of 1995. One of the most significant amendments was section 188(A), which provides for a pre-dismissal arbitration.
This section is an exception to a general principle that requires a dismissal to be preceded by a fair disciplinary hearing. In terms of this process, a disciplinary hearing is substituted for an arbitration.
The common procedure requires an employee, after being charged, to be subjected to a disciplinary hearing. If the employee is dismissed, then he may challenge the dismissal as unfair. The dispute for unfair dismissal might be referred to the bargaining council or the Commission for Conciliation, Mediation and Arbitration (CCMA). If the dispute cannot be resolved through conciliation, then it is referred to arbitration at the bargaining council or CCMA. Arbitration is the final determination of the dispute.
However, section 188(A) provides for the arbitration to take place before dismissal occurs. This is not to suggest that an employee is already dismissed, but to shorten the normal process. There are certain requirements that need to be complied with for section 188(A) to apply.
The section requires an employee to consent to the employer's request for pre-dismissal arbitration. Such a request must be in a prescribed form. The consent may be given by the employee by having a pre-dismissal arbitration clause incorporated in his employment contract. Only those employees who earn an certain amount, as prescribed by the minister in terms of section 6(3) of the Basic Conditions of Employment Act, may have such a clause in their employment contract. The amount currently prescribed by the minister is R89455.
An important aspect of the pre-dismissal arbitration is the independence of the person who presides over the arbitration. Unlike in a disciplinary hearing where the employer is responsible for the appointment of the presiding officer, the bargaining council or the CCMA appoints the presiding officer in an arbitration. The presiding officer has the same powers as the commissioner of the CCMA.
If the employee is not happy with the result of the hearing, then the only avenue available to the employee is a review of the findings at the labour court.
This process is convenient and cost-effective for the employer and the employee. The employer is required to pay R3000 for the service, which is a small amount compared with the cost of the normal process of disciplinary hearing.
It is advisable for employees to have pre-dismissal arbitration in their employment contracts to ensure that an independent person presides over a hearing.