Understanding the arbitration process – Employment guide

Bites Editor

6 months ago

Arbitration is the formal “hearing” stage of many South African labour disputes. After conciliation fails, the CCMA or a bargaining council hears evidence and legal argument, then issues a binding decision (an “arbitration award”). This guide explains the arbitration process in plain language, so employers and employees can prepare properly and avoid expensive mistakes.

Disclaimer: This guide provides general information, not legal advice. Arbitration outcomes depend heavily on the facts, evidence, and the forum’s jurisdiction.

Key takeaways

Arbitration is evidence-driven. The outcome depends on what you prove, not what you “feel”.
Conciliation is confidential. You cannot simply repeat conciliation discussions at arbitration.
The CCMA sets timeframes and forms. Late steps often require a condonation application.
Legal representation is not automatic in every case. Some dismissal arbitrations restrict lawyers unless tests are met.
An award can be enforced. You can certify it for enforcement if the losing party does not comply.
Review is possible, but narrow. You do not “appeal” because you disagree with the result.

What “arbitration” means in South African employment law

In everyday terms, arbitration is where the dispute gets tested. Parties present evidence, call witnesses, and cross-examine. The commissioner (or arbitrator) then decides what is fair and lawful on the facts proved at the hearing.

Arbitration is different from conciliation. Conciliation is informal, private, and without prejudice. Arbitration is structured, evidence-based, and ends with an enforceable outcome.

You will most often see arbitration at:

The CCMA (Commission for Conciliation, Mediation and Arbitration).
A bargaining council (if your sector falls under one).
Private arbitration (if an employment contract or collective agreement requires it, which is less common for ordinary dismissal disputes).

Key cases that shape how arbitration works

NUMSA v Driveline Technologies: The Labour Courts have recognised that disputes should not stall forever if conciliation does not meaningfully happen within required timeframes.
CCMA v Law Society, Northern Provinces: The courts confirmed that CCMA rules can limit legal representation in certain dismissal arbitrations, unless criteria are met.
Erasmus NO v CCMA: Postponements must be decided fairly and judicially, with real attention to prejudice and the need for a proper hearing.

When does a dispute go to arbitration

Many disputes go to arbitration after conciliation fails.

Common examples include:

Unfair dismissal disputes that typically go to arbitration

Dismissal for misconduct (discipline-related dismissal).
Dismissal for incapacity (poor performance or ill-health incapacity, depending on the dispute route).
Many “ordinary” unfair dismissal disputes where the Labour Relations Act directs the matter to arbitration.

Unfair labour practice disputes

Promotion, demotion, training, benefits, suspension, and certain disciplinary actions short of dismissal (depending on facts and jurisdiction).

Disputes that may go to the Labour Court instead

Some disputes must be adjudicated (or have different routes), such as certain automatically unfair dismissal claims, strike-related matters, and complex statutory disputes. Always confirm jurisdiction early.

The arbitration process step-by-step

Step 1: Conciliation happens first (in most cases)

Most CCMA and bargaining council disputes start at conciliation. It is private and without prejudice. The commissioner tries to broker a settlement. If you settle, the matter ends.

If you do not settle, the commissioner issues an outcome indicating the dispute remains unresolved (or the statutory conciliation period expires).

Step 2: Request arbitration using the correct form

To move into arbitration, a party must request the CCMA to arbitrate by filing LRA Form 7.13. You must also prove you served the other side, and you must attach a condonation application if you are late.

Practical tip: Don’t treat the filing as “admin”. Incorrect service, missing proof, or incomplete forms can delay the matter for months.

Step 3: Receive the notice of set down

The CCMA must usually give written notice of the arbitration hearing in advance. In standard CCMA arbitrations, the notice period is commonly 21 days, unless the parties agree otherwise or circumstances justify shorter notice.

Step 4: Pre-arbitration steps and “narrowing the issues”

The CCMA may require a pre-arbitration conference or direct parties to file statements that clarify:

What facts are common cause.
What facts are disputed.
What legal issues must be decided.
Which witnesses will be called.
What documents will be used.

These steps save time on the hearing day and reduce “trial by ambush”. They also help the commissioner identify jurisdiction problems early.

Step 5: Prepare your evidence properly

Strong arbitration preparation usually includes:

A chronology (dates, events, warnings, meetings, emails).
A document bundle (policies, notices, minutes, CCTV logs, clock-in records, WhatsApps, emails).
Witness planning (who proves which point, and why).
A remedy plan (what you want the commissioner to order, and why it is fair).

If you need a witness or documents that the other party will not provide, the law gives commissioners powers to subpoena witnesses and relevant material. Use this carefully, and in good time, because late subpoena requests often fail.

Step 6: The arbitration hearing itself

While each commissioner runs the room differently, most arbitrations follow this flow:

Preliminary issues: jurisdiction, representation disputes, postponement applications, document objections.
Opening statements: each party outlines what they will prove.
Evidence under oath: the first witness testifies, then cross-examination follows.
Document use: parties refer to the bundle to support witness versions.
Closing argument: parties summarise facts and law, and propose the outcome.
Award: the commissioner issues a written decision with reasons.

Important: Arbitration is not a repeat of the internal disciplinary hearing. The commissioner decides fairness based on evidence led at arbitration, even if the internal process was messy.

Step 7: The award and the remedies

An arbitration award can order outcomes such as:

Reinstatement (often the primary remedy in unfair dismissal matters, depending on facts).
Re-employment (returning the employee, sometimes on adjusted terms).
Compensation (money instead of returning to work, where appropriate).
Other corrective relief (especially in unfair labour practice disputes).

Representation at arbitration: can you bring a lawyer

Representation depends on the forum, the type of dispute, and the CCMA rules.

In many CCMA matters, parties use:

a trade union official,
an employer organisation official,
a co-employee or fellow director/employee, or
a legal practitioner (where permitted).

However, in certain dismissal arbitrations (especially misconduct/capacity dismissals), the CCMA rules can restrict legal representation unless:

the parties consent, or
the commissioner allows it after considering factors like complexity and fairness.

Practical tip: If you want legal representation, raise it early. Don’t arrive on the day assuming it will be allowed.

Postponements: when the hearing date must change

Postponements are possible, but the CCMA expects parties to act responsibly.

By agreement: If both parties agree in writing and submit the request in time, the CCMA may postpone without everyone appearing.
By application: If you cannot secure agreement, you must apply formally on notice and explain good cause.

Commissioners consider prejudice carefully. If your key witness is genuinely unavailable, you may have good cause. If you simply failed to prepare, you may not.

After the award: compliance, enforcement, rescission, and review

If the losing party complies

The matter ends. Employers should implement reinstatement, pay compensation, or correct records on time. Employees should return to work when ordered and confirm compliance in writing.

If the losing party does not comply

Arbitration awards can be certified and then enforced, similar to a court order. The CCMA rules provide for certification processes and forms for enforcement steps.

If you believe the award is wrong

You usually do not “appeal” a CCMA award on the merits. Instead, you bring a review application to the Labour Court on limited grounds (for example, procedural unfairness, jurisdiction errors, or an unreasonable outcome on the record).

Time limits matter. Reviews have strict deadlines, and late filings require condonation.

Tax and regulatory considerations

Arbitration outcomes can create tax consequences, especially where money is paid.

Compensation and back pay may be taxable. SARS guidance explains that CCMA and Labour Court awards may fall into taxable “gross income” categories.
PAYE may apply. Employers may have to withhold employees’ tax on taxable awards treated as remuneration.
Tax directives may be needed for certain lump sums. Follow SARS processes where required.

Practical tip: If an award includes multiple components (back pay, compensation, legal costs), separate them clearly in payroll and reporting.

What employers should do

Build a clean record early: policies, training proof, warnings, minutes, attendance logs.
Prepare witnesses properly: choose direct witnesses with first-hand knowledge.
Bundle documents professionally: paginate, index, and share in advance where required.
Test jurisdiction and representation issues early: don’t wait for the hearing day.
Consider settlement realistically: weak cases become expensive when dragged out.
Implement awards fast: late compliance can trigger enforcement and extra cost.
Handle PAYE correctly: check SARS treatment of each payment component.

What employees should know

Act quickly: referral delays often sink otherwise strong cases.
Bring evidence, not assumptions: documents and witnesses matter more than opinions.
Understand the remedy you want: reinstatement, compensation, or another order.
Prepare for cross-examination: answer directly, stay calm, and stick to facts.
Enforcement exists: if the employer ignores the award, you can certify and enforce it.

FAQ: Understanding the arbitration process

1) Is arbitration the same as a disciplinary hearing

No. A disciplinary hearing is an internal employer process. Arbitration is an external dispute process where an independent commissioner decides fairness.

2) Can I have a lawyer at CCMA arbitration

Sometimes. In certain dismissal arbitrations, CCMA rules can restrict legal representation unless both parties consent or the commissioner permits it for fairness and complexity reasons.

3) What happens if the other party does not attend arbitration

The CCMA may proceed in their absence if proper notice was given. The absent party may later apply for rescission, but they must show good cause.

4) Can we still settle after arbitration starts

Yes. Parties can settle at any stage. If you settle, confirm the terms in writing and consider making it a formal, enforceable settlement agreement.

5) How do I enforce an arbitration award if the other side ignores it

You can apply for certification of the award, then use enforcement mechanisms. The CCMA rules include specific forms for certification and enforcement steps.