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Thread: Arbitration Hearing

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    Arbitration Hearing

    A arbitration hearing is a hearing de novo and commisioner must decide what is infront of him.
    if an employee is found not guilty on one of the charges at the disciplinary hearing can the employer raised the charge again at arbitration.

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    Site Caretaker Dave A's Avatar
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    (Please bear in mind I'm no labour guru - I just have a little experience in these things, and this is definitely out of my experience. However, based on my limited understanding I suggest the following thought)

    From a process point of view that could open the door - I would think if the complainant successfully appealed against the finding and/or recommendation of the chairperson of the disciplinary hearing, the matter could then be referred to arbitration.

    You would need to bear in mind that the appeal would have to be very well argued. It's not enough to simply say you don't agree with the findings and outcome. You have to present a compelling argument.

    Hopefully one of the labour gurus will give a more enlightened opinion.
    The trouble with opportunity is it normally comes dressed up as work.

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    Hi Dave,
    Thanks for the response. In fact the arbitrator said those charges of which employee is found not guilty is falling away and he will only deal with the one charge of which employee was found guilty.
    The employee was issued with a final written warning but employer changed it to dismissal and said it was the recommendation from the independent chairperson.
    At arbitration the employer said the decision was based on one of the charges which employee was found not guilty.
    Arbitrator ruled in favour of employee on both procedural and substantive grounds but they applied for a review.

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    Site Caretaker Dave A's Avatar
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    In broad terms, my reasoning is that if an employee can appeal a recommendation by the chair of a disciplinary hearing and take a matter to arbitration, so then can the employer. The possible problem given your post above might be the way the employer went about it though, which would explain the combination of procedural and substantive grounds in the arbitrator's reasoning for finding.
    The trouble with opportunity is it normally comes dressed up as work.

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    Platinum Member sterne.law@gmail.com's Avatar
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    The employee is the plaintiff and chooses the course of action.
    The CCMA application is for a dismissal, therefore the not guilty charge, or a charge with reduced sanction is not in issue.
    An employee could take a warning to the CCMA, and appeal that.

    If a finding is made, and the employer then tries to hold another case or changes sanction, then the issues of double jeopardy comes to the fore.
    Whilst the employee can appeal, the employer can not appeal to the CCMA.
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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    Dave A (04-Jul-13)

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    Site Caretaker Dave A's Avatar
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    Quote Originally Posted by sterne.law@gmail.com View Post
    If a finding is made, and the employer then tries to hold another case or changes sanction, then the issues of double jeopardy comes to the fore.
    Can double jeopardy apply to the sanction? Effectively that's an appeal on the sentence rather than the finding of guilty/not guilty.
    The trouble with opportunity is it normally comes dressed up as work.

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    Hi Dave/Sterne
    Just for clarity.
    The hearing adjourned for the chairperson to make a finding on the 4 charges.
    The employee was then informed to be at the company where he was issued with a notice of terminating of service and it said it was on the recommendation of the chairperson.
    There was no verdict and no mitigating circumstances.
    the matter was referred to the CCMA for conciliation but both parties opted for arbitration.
    The employer started to lead evidence at arbitration on the all the charges but after 3 hours we discovered in the arbitration that the charges the employer was leading evidence on the employee was found not guilty at the disciplinary hearing and the recommendation was that of a final written warning.
    The chairperson did send the verdict to employer and ask them to send it to employee and both parties must submit mitigating and aggravating circumstances within 3 days.
    This verdict and request for mitigating circumstances was not given to employee.
    These papers only surfaced at arbitration.
    The arbitrator then said that the not guilty charges will fell away and he will only deal with the charge employee was found guilty and the reason why they changed the chairpersons recommendation.
    They put it on record that employee was dismissed for one of the charges the employee was not found guilty.
    The arbitrator ruled against them and ordered reinstatement retrospective.
    They applied for review saying the commisioner did not apply his mind whilst they had an attorney representing them and they agreed and it is on record that the not guilty charges will fall away.
    When employee raised one of the charges he was found not guilty the company objected to it.

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    Site Caretaker Dave A's Avatar
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    Quote Originally Posted by shiebas View Post
    the employee was found not guilty at the disciplinary hearing and the recommendation was that of a final written warning.
    Quote Originally Posted by shiebas View Post
    The chairperson did send the verdict to employer and ask them to send it to employee and both parties must submit mitigating and aggravating circumstances within 3 days.
    I'm missing something here.

    Why would the chair make a recommendation on sanction and a request for submissions in aggravation and mitigation?
    Or was the recommendation on sanction made only after the request for submission had expired?

    Quote Originally Posted by shiebas View Post
    This verdict and request for mitigating circumstances was not given to employee.
    These papers only surfaced at arbitration.
    Talk about the employer shooting themselves in the foot
    The trouble with opportunity is it normally comes dressed up as work.

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    Quote Originally Posted by Dave A View Post
    I'm missing something here.

    Why would the chair make a recommendation on sanction and a request for submissions in aggravation and mitigation?
    Or was the recommendation on sanction made only after the request for submission had expired?


    Talk about the employer shooting themselves in the foot
    Hi Dave,
    The chairperson found employee guilty on only 1 of the 5 charges.
    He then send this verdict to employer and ask employer to give it to employee to respond and employee must submit mitigating circumstances to him within 3 days.
    This never happened as the documents was never given to the employee.
    After the 3 days the chairperson then send his recommendation with the necessary documentation to be signed by employee, this was also not given to the employee.
    Instead they issued employee with a Notice of terminating employment and said it was the recommendation of the chairperson.

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    Site Caretaker Dave A's Avatar
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    Thanks for clearing that up.
    The trouble with opportunity is it normally comes dressed up as work.

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