HR 101 - Preparing for Disputes - Part 2

ARTICLE 47

Preparing for Disputes – Part 2

By Nikki Viljoen of Viljoen Consulting CC November 2009

Following on from last time, today we are going to look at some of the most typical and also most important issues that can be discussed at the ‘pre-meeting’.

Some of the most typical and also important issues that are or can be dealt with are (but not limited to):

•    Any means by which the dispute may be settled.  Both parties would be expected to express exactly what they are wanting that would give them a sense of vindication.  It is often at this point that an “out of court” settlement is reached and agreed to and once this agreement has been signed, the arbitration hearing would therefore  be totally unnecessary .
•    Facts that are the common cause.  In some cases it is the ‘straw that breaks the camels back’ that mess the whole works up and it is easier and more beneficial to all parties to get consensus on these and to agree to the facts up front. Issues such as (but not limited to)
+    the exact date that an employee was employed
    +    the exact date that the employee was dismissed
    +    the exact reason for the dismissal
    Here’s the thing – the more issues that can be agreed upon before the hearing, the less time (and expense) will be needed to establish the facts during the hearing.
•    Facts that are in dispute.  These are usually the issues that the parties cannot or will not agree on.  These are issues such as (but not limited to)
    +    the employees benefits
    +    the employees package
    +    the employees remuneration
    +    whether the treatment by the employer was fair and/or unfair.
    It may also include issues such as whether the employee was at the workplace on the day that the incident took place and so on.

Often at this point the parties may agree that the arbitrator will need to decide if the dismissal was procedurally fair or unfair and also whether it was substantively unfair.

•    Precise Relief claimed.   Usually this is the discussion that takes place that highlights whether the employee wants to be re-instated or whether they want some kind of financial compensation. 

    It is also at this stage that the sharing and exchange of documents takes place and one ‘common’ bundle of documents can be compiled.  Parties fighting about documents and their contents or lack thereof take up huge amounts of time and getting this resolved up front and beforehand makes life a lot easier and it will also greatly reduce the amount of time that is spent in the actual hearing.

Both parties should of course, document the entire meeting, making sure that all the issues that they have agreed to are correctly recorded as well as all the issues that were not agreed on.  These minutes can then be signed off on by both parties that then can also be presented to the arbitrator who will use them to get a clear idea of key issues that are relevant to the case.

Be careful though that you don’t give away too much of your case.  It is for this very reason that it is in your own interests to use someone who is an expert in Labour Law and it’s relevant processes and the negotiation thereof.  If you don’t and the whole thing goes pear-shaped, it could cost you a great deal of money.

 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