Arbitration is a formal hearing where parties to a dispute present evidence and arguments on the dispute to the arbitrator. The arbitrator then considers the evidence and argument and makes a finding on the merits of the case.
Arbitration is a formal hearing where parties to a dispute present evidence and arguments on the dispute to the arbitrator. The arbitrator then considers the evidence and argument and makes a finding on the merits of the case.
Section 138 of the Labour Relation Act 66 of 1995 (“LRA”) applies to all disputes referred under the LRA to Toka & Ass.
No, will need to be developed.
Toka & Ass is a CCMA accredited private agency in terms of section 127 of the LRA. In terms of its accreditation, it may conduct arbitration processes. Toka & Ass requires the consent of the parties to conduct the arbitration, and such consent can be in a contract of employment, collective agreement or an agreement at the time the dispute arises.
All communication must be directed through Toka & Ass and copied to the other party. Where a party communicates with the panellist through Toka & Ass about the case before that panellist, Toka & Ass shall copy both/all parties on any response. This maintains the independence and transparency of the process.
The referring party needs to complete the form on the Toka & Ass Website (to be developed) and submit it.
It is normally the employee who refers a dispute to Toka & Ass.
The referring party must refer an unresolved dispute within 90 days from the date that the certificate of outcome is issued.
The referring party will need to apply for the late referral to be condoned.
Toka & Ass appoints the arbitrator unless parties agree to an arbitrator, from its list of panellists.
Toka & Ass shall only appoint a commissioner accredited by the CCMA. The parties may agree to an arbitrator from Toka & Ass’s broader panel.
The employer must pay Toka & Ass for the arbitration because Toka & Ass cannot offer a statutory service that is less beneficial to an employee than that offered by the CCMA. Toka & Ass will in turn pay the arbitrator. Electronic payment to Toka & Ass will be required before the arbitration is confirmed.
Yes, if the parties have agreed to refer the arbitration to Toka & Ass.
It can be held online, at the employer’s premises, or another venue in the geographical area where the employee works. Toka & Ass may assist in arranging the online process or a physical venue.
The parties may agree the date and time of the arbitration. In the absence of agreement, Toka & Ass must determine the date and time of the arbitration.
The parties must be given at least 21 days’ notice of the arbitration hearing. Toka & Ass should schedule the matter within two days from receiving the referral to arbitration and payment for the arbitration, the cost of which will be determined by way of the requisite process document and/or pre-arbitration minute.
Not necessarily. The arbitrator can determine who can be in an arbitration process based on the interests of fairness to the parties. The award is not confidential and is a public document.
The arbitrator will determine the merits of the dispute. The arbitrator will also make all decisions on the process, and other preliminary matters including but not limited to legal representation, what evidence is admissible, condonation, postponements and jurisdictional issues.
Yes, and must be retained by Toka & Ass. The digital recording can be made available to the parties at request.
Normally, the arbitrator hears the evidence of each of the parties. The parties will be allowed to present their case, submit documents, call witnesses, cross examine the other party’s witnesses and present argument on their cases. The arbitrator may also try to resolve the case by agreement.
The arbitrator will guide parties in the process and it is not expected that parties are versed in the arbitration process.
The arbitrator will guide parties in the process and it is not expected that parties are versed in the arbitration process.
If the referring party (the employee) does not attend, the arbitrator may dismiss the case and the case will be closed alternatively may the arbitrator strike the matter, and call upon the referring party to show good cause as to why the matter should be re-enrolled. If the responding party (the employer) does not attend the arbitration, the arbitrator may proceed with the arbitration in the absence of the responding party and issue the award. The arbitrator may also decide to postpone the case if a party is not present.
The arbitrator will issue an award.
The award is final and binding.
The award can be made an order of court by the Director of the CCMA by completing the CCMA form LRA 7 .18: Application to certify CCMA award & Writ of Execution.
The award can be made an order of court by the Director of the CCMA by completing the CCMA form LRA 7 .18: Application to certify CCMA award & Writ of Execution.