South Africa: The CCMA's New Guidelines For Misconduct Arbitrations - Part 1

Last Updated: 22 November 2011
Article by Alex Ferreira and Louietta Du Toit

Most Read Contributor in South Africa, September 2016


1. The CCMA has during September 2011 published a document titled "Guidelines on Misconduct Arbitrations" ("the Guidelines"), which will become effective on 1 January 2012. The Guidelines have been published with the purpose of promoting consistent decision-making by CCMA Commissioners during arbitrations relating to dismissals for misconduct, and in order to give effect to the constitutional right to lawful, reasonable and procedurally fair administrative action, as contained in Section 33(1) of the South African Constitution.

2. This document inter alia contains detailed guidelines for the conduct of arbitration proceedings, for the evaluation of evidence, for the assessment of the procedural as well as the substantive fairness of a dismissal, and for the determination of an appropriate remedy for a dismissal that is found to have been unfair.

3. CCMA Commissioners are, in terms of Section 138(6) of the Labour Relations Act 66 of 1995 ("the LRA"), legally obliged to take the Guidelines into account. Furthermore, insofar as the Guidelines contain interpretations of the law, they constitute CCMA policy, and arbitrators must accordingly specifically justify any deviation from this policy by reasons specifically set out in the relevant arbitration award. The CCMA and its commissioners remain, however, bound by the stare decisis principle, meaning that their interpretation of the law must be in accordance with binding decisions of Court.

4. This is the first article in a series of articles meant to advise litigants who may have to arbitrate before the CCMA after 1 January 2012, in the face of the new Guidelines. These articles do not purport to be an exhaustive guide to, or a comprehensive summary of, the Guidelines, but are primarily intended to practically assist litigants, both in critically assessing the manner in which arbitrators conduct their arbitrations, and in potentially formulating subsequent applications for the review of arbitration proceedings, should this be necessary and be justified at the conclusion of such proceedings.

5. The purpose of this first introductory article is to primarily examine those sections of the Guidelines which advise arbitrators on how to conduct arbitration proceedings relating to misconduct.

6. It is likely that the CCMA will publish further supplementary guidelines in due course.

how an arbitrator should conduct arbitration proceedings

7. An arbitration hearing does not constitute a review of an employer's decision to dismiss an employee. The Guidelines re-affirm that the arbitration is a "new hearing" – the arbitrator must decide afresh, based on the evidence before him, whether or not the dismissal was fair. The arbitrator may, however, refer to documents related to the preceding disciplinary process, such as the record of a disciplinary enquiry, to the extent that these documents are admitted as evidence during the arbitration. An arbitrator may draw a positive inference if a witness's evidence is consistent with the record of a disciplinary enquiry, while an adverse inference may be drawn if a witness changes his or her version.

8. The Guidelines also re-affirm that an arbitrator must conduct an arbitration hearing impartially. If an arbitrator engages in biased conduct or acts in a manner which is unfair or unreasonable to any of the parties, this obligation will be violated and, inter alia, may well serve as a basis for a review.

9. An arbitrator must decide on the procedure to be followed for the arbitration and inform the parties thereof. This decision as to which procedure to follow is within the arbitrator's discretion. In terms of Section 138(1) of the LRA, an arbitrator may decide on the form of proceedings he deems appropriate to resolve the dispute fairly and quickly, and he must deal with the substantial merits of the dispute with the minimum of legal formalities. It follows from this that arbitration proceedings need not be conducted in the same way as a formal court hearing and need not be subject to the same formalistic rigours.

10. An arbitrator should specifically consider the following factors when deciding on an appropriate procedure:


the complexity of the factual and legal matters involved;


the attitude of the parties to the form of proceedings (this is accordingly something which the parties themselves may wish to address the arbitrator on);


whether or not the parties are represented;


whether legal representation has been permitted; and


the degree of experience of the parties or their representatives in appearing at arbitrations.

11. The Guidelines suggest that an arbitration hearing should normally involve six distinct stages, the sequence of which may vary depending on the particular procedure followed. The Guidelines contain particular provisions relating to each of the following six stages:


Preparation and introduction ("Stage 1");


Dealing with preliminary issues ("Stage 2");


Narrowing the issues ("Stage 3");


The hearing of evidence ("Stage 4");


The award ("Stage 6").

stage 1

12. The Guidelines provide that the arbitrator should expressly inform the parties concerning certain particulars relating to the arbitration, during Stage 1 of the arbitration: these include the scope of his powers, the fact that the parties may at any stage of the proceedings agree to settle the matter, and the fact that they are entitled to exercise certain rights in terms of Section 138(2) of the LRA. These rights mean that, irrespective of the form of the arbitration proceedings, the parties must be entitled to give evidence, to call and question witnesses, and to present concluding arguments.

13. The extent to which it is necessary that the nature and particulars of the proceedings be explained to the parties, should be determined by the parties' or their representatives' knowledge and experience of CCMA proceedings. For example, it may be particularly important that the arbitrator explain to an inexperienced and/or unrepresented party that it is entitled to cross-examine the other party's witnesses. An arbitrator should be alert to circumstances which indicate that a party's case is being prejudiced due to an incorrect understanding of the nature of the proceedings: for example, if a party fails to cross-examine the other party's witnesses, the arbitrator should ordinarily bring this to the attention of the party in question and try to correct any possible misunderstanding which may exist in the mind of that party.

stage 2

14. Preliminary issues, such as the recusal of the arbitrator, condonation, jurisdiction, legal representation, and discovery of documents, should be dealt with during Stage 2, before the commencement of the actual arbitration hearing.

15. Both the parties and/or the arbitrator may raise preliminary points. Parties must be given the opportunity to argue and, if necessary, lead evidence on the preliminary points raised. Should any party request clarification on a preliminary issue, the arbitrator must provide him/her with the necessary explanation.

16. A party may apply for legal representation at this preliminary stage and may also do so at a later point during the course of the proceedings. Legal representation may also be allowed by the arbitrator for a specific purpose only, such as to argue a preliminary point.

17. The arbitrator is obliged to deal with and confirm the following preliminary points, irrespective of whether they are specifically raised by either party:


The fact that the CCMA has jurisdiction to hear the particular dispute; and


The proper and correct identification of both parties, i.e. as a natural person, partnership, closed corporation, company or other legal person.

18. A ruling on preliminary issues should also be made at this stage, unless the preliminary point raises complex legal issues which require further consideration, in which case the proceedings may be adjourned. It is sufficient if the reasons for decisions on preliminary issues are contained in the final arbitration award. However, if a decision on a preliminary issue resolves the dispute, the arbitrator must issue an award containing the reasons and the factual basis for the decision.

stage 3

19. For purposes of expediting the resolution of the dispute, the arbitrator should facilitate an agreement between the parties on the legal and factual issues of the matter during Stage 3. This should be the case insofar as this is required by the complexity of the matter, and to the extent that it has not already been done during conciliation or otherwise. The employee and employer party should thus be invited by the arbitrator to respectively clarify certain aspects, which is normally done in the form of brief opening statements by both sides.

20. At this stage, the arbitrator should deal with the question of substantive fairness, by referring to each of the issues listed in the guidelines in cases of dismissal for misconduct, as contained in Item 7 of Schedule 8 to the LRA.

21. At the conclusion of this stage, the arbitrator should record the agreement reached between the parties regarding the common cause issues, the issues in dispute and the issues which must be decided in order to resolve the dispute.

stage 4

22. Stage 4 is an opportunity for the parties to lead their own evidence and to question and challenge each other's evidence. The arbitrator should decide on and inform the parties of the form of these proceedings, after considering the various factors already listed above.

23. If one or both of the parties are unrepresented, or have inexperienced representatives, the arbitrator would be expected to be more actively involved in this process and he must ensure that the parties are aware of and can exercise their rights in terms of Section 138(2) of the LRA. A failure to adhere to this duty may provide the basis for a review application to the Labour Court, in circumstances where an inexperienced or unrepresented party may be prejudiced as a result of the arbitrator's failure to adhere to his duty.

24. The Arbitrator has the following duties in relation to witnesses at an arbitration hearing:


to ask the witnesses to identify themselves, to swear them in, and to advise them of the process of questioning;


to ensure that the testimony of witnesses is recorded electronically or digitally; and


to take notes of the evidence given and to keep these notes in a file.

25. If a party's witness is present during the evidence of another witness called by the same party, the corroborating evidence of the former witness will usually not carry much weight, and an arbitrator should expressly inform the parties of this. Witnesses who have not yet testified should generally not be present in the arbitration hearing, but may be present if a party specifically requires it, and it is therefore important that parties be informed that this may have an impact on the evidential value of the testimony of their witnesses.

stage 5

26. During Stage 5 of the proceedings, parties have a final opportunity to argue their cases, based on the evidence presented. An arbitrator may allow parties to also file written arguments within seven days of the hearing, if there are complex issues involved.

27. An arbitrator may not base an arbitration award on a point which was not relied upon during the arbitration proceedings, unless the parties are called upon to make written or oral submissions on that point, before the award is made.

stage 6

28. Subsequent to all of the above, the arbitrator issues an arbitration award during Stage 6. The section of the Guidelines that deals specifically with the issuing of arbitration awards will be discussed in a subsequent article.


29. Parties are advised to be mindful of the Guidelines during misconduct arbitrations, and particularly those sections which impose specific duties upon arbitrators.

30. While not all the Guidelines are drafted in express mandatory terms, and generally indicate how arbitration proceedings "should" be conducted, arbitrators are obliged to take the Guidelines into account. By assessing the conduct of an arbitrator with reference to the Guidelines, a party may be able to more easily prove that the arbitrator exceeded his powers, committed misconduct in relation to his duties and/or committed a gross irregularity in the conduct of the proceedings. In terms of Section 145 of the LRA, such grounds might constitute a defect in the arbitration proceedings, rendering the arbitration award reviewable.

31. With this in mind, the Guidelines should serve as an essential and practical yardstick against which to measure the conduct of CCMA arbitrators after 1 January 2012.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.