As long as there are humans, there will be disputes.
We are, by nature, a bit of a defensive bunch, and we don’t take it lightly when things don’t go the way we expect or assume. The kind of dispute we’re talking about here, though, is not a scuffle between two schoolboys – this is all business.
When it comes to the working world, there are certain rules that need to be followed. Every company has their own set of rules, which is typically known as a Code of Conduct – the dos and don’ts of that particular organisation. These are often laid out in the employee contract, and include things like working hours, probationary period, leave policy and IT policy.
The contract is then signed by both the employer and the employee, which constitutes agreement to and acceptance of the rules. There are instances, however, when there is a breach of contract by one of the parties, and resolving this dispute can be a costly and drawn out experience for both sides.
Enter the Arbitrator, or Arbitration Consultant. Their job is to resolve disputes objectively, prepare clients to go through the process of a disciplinary hearing or arbitration, and involves knowing labour laws, practices and procedures inside out.
So what does happen when there’s a breach of contract, and when exactly is an Arbitrator or Arbitration Consultant needed?
Labour Law Disputes in South Africa
When a situation arises that is considered to be a breach of contract, the first course of action is to try and remedy the situation. This falls to the Human Resources department within the company, and they investigate the situation and decide on the most appropriate course of action. In most cases, this comes in the form of less severe disciplinary actions:
- Performance counselling,
- Ensuring the employee is aware of the rule they have broken,
- Offering the individual assistance with the issue.
If, however, the problem cannot be improved or resolved by offering help in this way, further disciplinary action needs to be taken, most often by way of an internal disciplinary hearing. The company is required to inform the employee in writing of a date and time for the hearing, giving both sides enough time to prepare their defense.
This is where the role of Arbitrators (Commissioners) and Arbitration Consultants come into play. It is imperative that the person chairing the hearing, and ultimately making the final decision, is an external, impartial party, and will act in complete fairness to resolve the dispute.
One both sides have presented their case, the Arbitrator will take time to review the information provided by both parties. This can take up to 72 hours, depending on the complexity of the case, and will result in a decision (known as the award) that is legally binding.
However, if either party is dissatisfied with the outcome of the disciplinary hearing, they have the right to take it to the next level. An appeal can be filed for another hearing, or the employee can take the matter further by enlisting the help of an external organisation. These depends on your industry, and can include: