WHAT TO DO WHEN . . . . It's How You Play The Game - Part 2

ARTICLE 41

WHAT TO DO WHEN . . . . It’s How You Play The Game – Part 2

By Nikki Viljoen of Viljoen Consulting CC September 2009

Following on from last week – the decision on the part of the Arbitrator and/or Commissioner is particularly unfair and in this instance it is incumbent upon the ‘wronged’ party (be it the employer or the employee) to challenge the decision via a review at the Labour Court.

What does this mean?

Well for starters the challenge can be made on the grounds that the Arbitrator took a bribe, or was biased, or that there was important information and/or evidence that was ignored and/or that he/she failed to arrive at a reasonable or proper award. You see the CCMA Arbitrator has to ‘weigh up and consider all the evidence, both oral and documentary, prior to embarking upon the process of making factual findings”.

Therefore:

· The Arbitrator cannot be about his/her own opinion, but rather based on the facts presented.
· The decision must be made by following reason and not based on fantasy, guesswork, ‘hallucination’ or speculation of any kind.
· The Arbitrator must have applied his/her mind seriously to the issues at hand and not treat them or the charges as some sort of joke.
· The Arbitrator is required to justify his/her findings in a defensible and logical manner. He/she must be able to give solid reasons for the decision that he/she has come to and why.
· The decisions must comply with the law
· The decisions must be rational

Now here’s the kicker – the Arbitrator’s reasons for giving all of these decisions must be given at the time that he/she renders the decision, otherwise it can be assumed that he/she did not actually have a good reason.

The bottom line is that the both parties have the right to know why/how the Arbitrator came to his/her decision against them so that they can decide whether or not and/or how to challenge the decision that has been reached.

This is one of the controls that have been put into place to try and ensure that Arbitrators don’t make ‘faulty’ decisions. The thinking is that if the Arbitrator has to explain his/her actions he/she will be less likely to ignore or misrepresent the facts and evidence that was put before them and ensure that a fair decision is reached.

So the Arbitrator has to have considered all the serious objections and all the alternatives to the decision that they have made. They have to provide a rational connection between the facts that were presented and their ruling.

This also places a requirement on employers and that is that they too must have good reason when acting against employees and they too must be able to provide these reasons clearly and comprehensively to the Arbitrator.

For the employer, this means having all their ducks in a row, facts and evidence readily and professionally at hand and good presentation skills. Emotion does not play any part here – simply state the facts and back them up with the evidence, witnesses and whatever else that you have at hand. This will show the Arbitrator that you have followed the procedures correctly and your reasoning for instituting disciplinary measures and he/she, will in all probability will have to follow the your line of reasoning.

In this way, you as the employer helps the arbitrator find in your favour.

Of course, this does mean that the employer has to ensure that all management decisions are made unemotionally and in line with the law and all the requirements in terms of policies and procedures.

Nikki is an Internal Auditor and Business Administration Specialist who can be contacted on 083 702 8849 or nikki@viljoenconsulting.co.za or http://www.viljoenconsulting.co.za