Arbitration

• Table of Content

• What is arbitration

• Comparison: Arbitration and litigation

• Forms of arbitration

• Matters to consider when organising arbitration proceedings

• Pre-arbitration conference

• Arbitration proceedings

• Arbitration Hearing (Labour arbitration)

 1. What is arbitration

 process whereby the parties to the dispute enter into a formal agreement that an independent
and impartial third party (arbitrator), will hear both sides of the dispute and make an award
which the parties undertake through the agreement to accept as final and binding.
• NB Arbitration has become a universal option for resolving disputes arising from:

 a written contract,
 disputes relating to employer-employee relations,
 shipping,
 insurance, and
 building and engineering contracts.
 international commercial disputes.

• NB One of the principal characteristic of arbitration is that the dispute is removed from the
jurisdiction of the courts.

• NB The parties do not have a right to appeal to the courts.

• HOWEVER, application can be made to the courts to review an award in order to either:

A) set it aside or
B) to remit it to the arbitrator.
• NB International arbitrators are chosen because of their symbolic credibility, which is that they
are often:

A) ex-judges,
B) ex-directors of large and prestigious law firms,
C) contributors to high-profile publications and have lectured at high-profile universities.
 [Link]: Arbitration and litigation
 Arbitration resembles judicial proceedings in so far as:

a) the dispute is resolved;

b) prescription is interrupted;
c) an award or judgment cannot be given on a holiday;
d) there is the same sequence of proceeding and proof;
e) summonses are issued;
f) postponements are granted;
g) admissions of the parties are given credence; and
i) judgment is given for costs.
• Commonly recognised differences between arbitration and judicial proceedings
are:
 Arbitration is dependent on the existence of a prior arbitration agreement,
 while a claimant can institute judicial proceedings against the other party
without the other party's cooperation;
 Arbitration is a private process and only those involved in the arbitration
process have access to the hearing,
 while litigation is a public process and the
general public, including the media, have free access. (Please go through the rest—self explanatory)
 In arbitration, the parties themselves select the arbitrator through agreement
either directly or indirectly. The parties can also agree on the qualifications or
expertise of the arbitrator.
 In judicial proceedings, the parties have no say in
which judge is allocated to hear the case;
 In arbitration, the parties choose the venue of arbitration, normally by
nominating a neutral city in the arbitration agreement.
 Judicial proceedings take place in a court that has jurisdiction which may give one of the parties a
forum advantage;
 The arbitral award is generally final and binding and not subject to appeal.
 In judicial proceedings judgments are appealable;
 Judicial proceedings are a formal legal process, where procedural errors can prove fatal
to either party's case.

 With a number of caveats, this is less so in arbitration;

 Arbitration is said to be less expensive than judicial proceedings, although in court
litigation the parties do not pay for the use of the court or the cost of the -dire
 while in arbitration the parties pay the arbitrator's fees, for the venue, and for the
recording and transcription of the proceedings;
 An important advantage of arbitration for the claimant is that there is minimum delay. The process can be
very efficient.
 Courts are often booked years in advance and judicial proceedings are subject to other purposeful delays
brought about by litigation tactics. This expedited process may of course prove to be a disadvantage for the
defendant.
 1. Forms of arbitration

• There are a number of different forms of arbitration.

Consensual arbitration

 where the parties of their own accord agree to submit their disputes to arbitration for resolution.

Statutory arbitration

 where legislation (such as the Labour Relations Act 66 of 1995) mandates that specific types of disputes must be
submitted to arbitration and may not be placed before the court.

Court-directed arbitration

• where the court directs that parties (such as a divorced husband and wife) must submit future disputes of a certain
type (such as those relating to the joint custody of their child) to arbitration.
Ad hoc arbitration

• an agreement to refer either future or existing disputes to arbitration to facilitate and supervise the
proceedings and to supply the procedural rules for the arbitration.

• NB The rules and procedures of the arbitration are decided by the parties in the arbitration agreement.

Institutional arbitration

• an agreement to refer a dispute to arbitration in accordance with the rules and procedures of an arbitration
institution.

• There are a few domestic (South African) arbitration institutions, such as the Association of Arbitrators
(Southern Africa), and the Arbitration Foundation of South Africa (AFSA).
Documents-only arbitration

• Arbitration whereby parties agree for the proceeding to be conducted only on the basis
of the documentary evidence (e.g affidavits, contracts, plans, programmes, test results,
photographs) submitted by the parties and that an oral hearing is not necessary.

Fast-track arbitration

• involves agreeing on firm submission and adjudication deadlines in order to ensure an

expedited resolution of the dispute.

• Some international institutions have special fast-track rules that provide a schedule of
deadlines.
Ex parte arbitration

• arbitration where only one party, usually the claimant, attends the hearing and promotes his
case.

• The other party, usually the defendant, may or may not have submitted a statement of
defence, but decides against attending the hearings.

• NB Even though the defendant does not attend, the claimant is still required to prove his
case.

• NB In arbitration, there is no award equivalent to a default judgment as provided for in the

rules of court.
Multi-party arbitration

• the number of litigants is more than two, and they are not aligned on two sides.
• An example would be where the employer, engineer or contractor is at fault and
they agree to a single arbitration.
 Matters to consider when organising arbitration proceedings

• Here is a checklist (or list of headings) for matters that should be considered when organizing the arbitration proceedings:

 Arbitration rules
 Language of proceedings
o Possible need for translation of documents
o Possible need for interpretation of oral presentations
o Cost of translation and interpretation
 Place of arbitration
 Administrative services
 Deposits in respect of costs
 Agreement on confidentiality of information
 Routing of written communications among the parties and the arbitrators
 Telefax and electronic means of sending documents
 Arrangements for and scheduling the exchange of written submissions
 Practical details concerning written submissions and evidence (eg method of
submission, copies, numbering, references)
 Defining points at issue; order of deciding issues; defining relief or remedy
sought
 Possible settlement negotiations and their effect on scheduling proceedings
 Documentary evidence
o Time-limits for submission of documentary evidence intended to be submitted
by the parties; consequences of late submission
o Whether the arbitral tribunal intends to require a party to produce documentary
evidence
o Should assertions about the origin and receipt of documents and about thecorrectness of
photocopies be assumed as accurate?
o Are the parties willing to jointly submit a single set of documentary evidence?

• Should voluminous and complicated documentary evidence be presented

through summaries, tabulations, charts, extracts or samples?
 Physical evidence other than documents?
o What arrangements should be made if physical evidence will be submitted?
o What arrangements should be made if an on-site inspection is necessary?
 Witnesses
o Advance notice of a witness whom a party intends to present; written witnesses' statements
o Manner of taking oral evidence of witnesses
 Order in which questions will be asked and the manner in which the hearing of witnesses
will be conducted

• Whether oral testimony will be given under oath or affirmation and, if so, in what form an oath or
affirmation should be made.
  May witnesses be in the hearing room when they are not testifying?
o The order in which the witnesses will be called
o Interviewing witnesses prior to their appearance at a hearing
o Hearing representatives of a party
 Experts and expert witnesses
o Expert appointed by the arbitral tribunal
 The expert's terms of reference
 The opportunity of the parties to comment on the expert's report, including by
presenting expert testimony
o Expert opinion presented by a party (expert witness)
 Hearings
o Decision whether to hold hearings
o Whether one period of hearings should be held or separate periods of hearings
o Setting dates for hearings
o Whether there should be a limit on the aggregate amount of time each party will have for oral arguments and
questioning witnesses
o The order in which the parties will present their arguments and evidence
o Length of hearings
o Arrangements for a record of the hearings
o Whether and when the parties are permitted to submit notes summarising their oral arguments
 Multi-party arbitration
 Possible requirements concerning filing or delivering the award—who should
take steps to fulfil any requirement.
•Ideally this checklist should be confirmed between the arbitrator (arbitral tribunal) and the parties at a separate pre-proceeding meeting
convened for that purpose.
1.5 Pre-arbitration conference

• The purpose of a pre-arbitration conference 'is to expedite and reduce the cost of arbitration proceedings by:

A) encouraging the parties to narrow down the issues in dispute through agreement, and
B) to agree which evidence will not be contested so that it can merely be tabled without having to be proven.

NB Disputes are sometimes also settled at a pre-arbitration conference through negotiation.

• The rules of the Association of Arbitrators (Southern Africa) provide that prior to the commencement of the
hearing the parties may arrange a pre-hearing conference with the objective of reaching agreement on possible
ways of curtailing the duration of the hearing and in particular on all or any of the following matters:

 the possibility of obtaining admissions of facts;

 the holding of any inspection or examination;
 the making of any discovery of documents;
 the giving of any further particulars reasonably required for the purposes of the
hearing;
 the production of plans, diagrams, photographs, models and the like to be used
at the hearing;
 the consolidation of hearings;
 the quantum of damages; and
 the preparation and handing in at the hearing of copies of correspondence and other documents
in the form of a paginated and indexed bundle with copies for the arbitrator and both parties.
• The rules further provide that at the conclusion of such conference the parties shall
draw up and sign a minute of the matters on which they have agreed and this shall
be handed to the arbitrator at the commencement of the hearing.
 6. Arbitration proceedings

1.6.1 Privacy

• The concept of private arbitration derives from the fact that the parties have agreed to submit to
arbitration particular disputes arising between them and only between them.

• NB It is implicit in private arbitration that strangers shall be excluded from the hearing and
conduct of the arbitration.

• NB Neither the tribunal nor any of the parties can insist that the dispute be heard or determined
concurrently with or even in consonance with another dispute, however convenient that course
may be to the party seeking it and however closely associated the disputes in question may be.
NB The principle of privacy should accordingly not be construed so as to prevent one party from
relying upon an award, or of enforcing that award in a public court.

NB Although confidentiality is usually restricted with regard to the disclosure of an award,

disclosure may also be required of pleadings, written submissions, proofs of witnesses as well as
transcripts and notes of the evidence given in the arbitration.

NB Confidentiality cannot be preserved:

(a) Where the court allows disclosure of documents that are reasonably necessary for the
protection of the legitimate interests of an arbitrating party's legal rights vis-a-vis a third party, in
order to found a cause of action against the third party or to defend a claim or counterclaim
brought by the third party;
b) where public interest or the interests of justice dictate otherwise;
c) where disclosure is made with the express or implied consent of the
party who originally produced the material; and

d) where an order of court is made for disclosure generated by an

arbitration such as for the purposes of a later court action.
1.6.2 Joinder and consolidation of proceedings

• The need for joinder or consolidation of proceedings may arise in cases where a number of
parties, who are not party to the same arbitration agreement, are involved in a dispute.

• For example, in a construction project a main contractor may make a number of sub-contracts
each of which contains a separate arbitration clause and a dispute may arise in which a claim is
made against one sub-contractor who seeks to blame another.

NB The court has the power to order consolidation or concurrent hearings, as well as procedures for
allowing additional parties to be joined.
NB In arbitration, the power to order consolidation or concurrent hearings does not exist.

The reasons are:

 this form of dispute resolution depends on the agreement of the contracting parties that a private
arbitrator will arbitrate disputes between them.

 Unless the parties otherwise agree the arbitrator only has jurisdiction to decide on disputes arising
from the parties' own agreement.
 To give the tribunal power to order consolidation or concurrent hearings would frustrate the
agreement of the parties to have their own tribunal for their own disputes.
 Further difficulties could well arise, such as the disclosure of documents from one arbitration to
another. NB However, if the parties agree to invest the tribunal with such a power, then there can be no objection.
1.6.3 Place of arbitration

• Section I4(l)(b)(i) of the Arbitration Act, provides that the arbitration tribunal may determine the time and place
of arbitration proceedings where the arbitration agreement is silent on the matter.

• Importance of a place of arbitration

 The place of arbitration may prove to be important in determining the jurisdiction of a court that has been
approached to recognise or set aside an arbitration award
 determines the procedural law applicable to the arbitration.

• NB Generally the arbitration agreement only indicates the city where arbitration is to take place and not the
actual building.

• Such a designation is sufficient to determine jurisdiction.

Question?

NB what happens when a party tries to avoid arbitration in a certain place?

Answer

The court will determine the proper place for arbitration.

By considering where the subject-matter of the dispute was the most closely connected i.e such as
where a party actively traded and had its offices.

NB Where the place of arbitration was not agreed by the parties and was not clearly stated in the
arbitration award, for example where the award merely states the arbitrator's address and that the
arbitrator determined the value of two partnerships in various places, the court will define the place of
arbitration to be the actual effective place of arbitration.
• This could be the place of the last oral hearing of both parties or the
place of negotiations with both parties or if the arbitrator is doing a valuation
then the place of the main audit.
• NB The fact that the arbitrator makes an error in determining the proper venue
for arbitration will not necessarily be fatal to the award unless the court is
provided with a basis for concluding that the choice of venue was a purely legal
determination.
1.6.4 Language

• The language of the arbitration proceedings means the language of all communication regarding the arbitral
proceedings including the statement of claim, statement of defence, the hearings, the award and also the
language to which the evidence shall be translated.

NB A choice of language may be important where the parties are connected to different countries that have
different official languages.

NB Lacking any specific agreement by the parties to the contrary, or any statement to the contrary in the rules of
the arbitration institution, it would normally be expected to conduct the arbitral proceedings in the official
language of the place of arbitration even where the contract itself is drafted in two languages.

NB A party who is not able to speak the language of the place of arbitration is under an obligation to obtain
assistance from an interpreter in order to fully participate in the proceedings.
1.6.5 Rules of procedure

• Where the parties agree in the arbitration agreement that the arbitrator has the exclusive power to rule on
procedural and interlocutory issues, then the court's jurisdiction to review these issues is ousted.

• Where there has to be a departure from the rules, such a departure must be consensual.

• Where there has been non-compliance with the rules that is not consensual the departure from the rules
must not be unreasonable.
• The question of reasonableness has to be determined in the context
of the High Court Rules (the Uniform Rules of Court). Mavundla J636
listed the factors that the court will generally consider:
(a) the extent of non-compliance, in other words how far the other party has
strayed away from the rules;

(b) the prejudice that is likely to be suffered by the complaining party;

(c) the cause of such non-compliance;

(d) the aspect of fairness and equity to all the parties;

(e) the prospects of success of the complaining party in its defence or its claim;
and

(f) in light of the above, whether such departure from the rules is reasonable.
Rules of arbitration institutions that commonly deal with payment of arbitration fees and deposits are as
follows:

(a) The rules of an arbitration institution provided that it would convene a committee to hear a challenge
to an arbitrator. The rules did not provide for that institution to demand an up-front deposit or security before
convening the committee. The chairperson was found to be ultra vires when he arbitrarily demanded a deposit
or security as a precondition to convening the committee.

(b) Parties may validly agree a sanction in the arbitration rules for non-payment of arbitration fees, such
as a rule providing that any appeal shall be considered withdrawn if the fees for the appeal are not paid within
thirty days. In such a case a court found that where a party had remitted the money through his bank within
the set period, in contrast to a usual credit transfer, it was not the day of the payment but the day of the
receipt of the money that decides whether the set period was observed as only this date is certain enough for
the calculation y the arbitration tribunal to ascertain if the set period has been met.
[Link] Statement of claim and defence

• A statement of claim is prepared by the claimant and should—

(a) be in writing,

(b) state the name and address of the claimant and the defendant,

(c) aver that the arbitration tribunal has jurisdiction,

(d) set out the dispute in sufficient detail,

(e) state the facts relevant to the points of dispute,

f) be accompanied by a copy of the relevant contract(s) and documents, unless the
rules of the arbitration institution provide for later distribution as an agreed bundle,

(g) state out the relevant remedy sought, including:

i. any specific performance;

ii. the amount claimed;

iii. the interest claimed;

iv. a claim for the cost of the arbitration proceedings;

v. any interim remedy claimed.

A statement of defence is prepared by the defendant and should—

(a) be in writing,

(b) state any objections to jurisdiction of the arbitral tribunal before addressing the matters raised in the
statement of claim,

(c) address each of the points of dispute as well as the relief or remedy sought in the statement of claim,
normally paragraph by paragraph (averment by averment),

(d) set out any statement of counterclaim.

5.5.7 Right to be heard and notice of proceedings
• Proceeding with a hearing without proper prior notice to both parties constitutes a gross
irregularity and fundamentally taints both the proceedings and any decision depending on them.
• A party may not later claim a violation of due process when the chosen method of providing
notice of arbitration proceedings, is followed.
NB A court held that there was not a violation of due process in the following examples:

(a) The claimant had made a reasonable inquiry as to the defendant's address and had sent
notices to all three known addresses of a corporate party and the arbitration proceeded in the
absence of the defendant.
(b) A notice of the arbitration proceedings was sent to the address of the defendant's
representative and not to the address of the defendant's state registration.
(c)The defendant had submitted a defence but did not appear before the arbitral tribunal.
In determining whether the right to be heard was infringed the court may take into
account:

(a)the length of the arbitration proceedings;

(b)the evidence submitted;
(c)whether the award issued by the arbitral tribunal was a reasonably foreseeable
outcome with sufficient evidentiary support;
(d)whether the claimant had enough opportunity to submit additional evidence
and allegation, but decided not to do so.
Courts have found that the right to be heard was not infringed where—

(a) the complaining party was given a copy of the experts' inspection report and an opportunity to deal with it,
and where at no stage did that party indicate it wished to contest any part of the report, to call any other
people or experts as witnesses, to question the experts or to present a contrary case nor did it apply for a
re-inspection.

b) the arbitrator did not fully discuss all of the defendant's essential arguments in the reasons upon which the
award was based.
c) the complaining party's contention that he had been denied a right to be heard amounted to a correction by
the arbitral tribunal of obvious spelling mistakes and other formal deficiencies; and
d)
d) the complaining party had ample opportunity to present its own
EVIDENCE to the amount of the claim but failed to do so and only
complained at the time of enforcing the award that the arbitrator had
formed his opinion as to the amount of the claim through independent
investigation.
5.5.8 Failure to attend

• A party who wilfully refuses to participate in an arbitration is deemed to have forfeited the opportunity to be
heard.

NB Arbitrators had in terms of s 15(2) of the Arbitration Act been entitled to proceed with the arbitration in the
absence of a party where—

(a) a party had arrived at the hearing and handed the arbitrator a request for a postponement in order
to enable the defendant to seek certain relief in the Supreme Court.
b) He had telephonically informed the arbitrator's office that he would not be available on the day and had
requested and been furnished with a copy of the summary of the evidence given on that day.
Arbitration Hearing (Labour
arbitration)
5.6.1 Introduction and preliminary issues
 The arbitrator will initially introduce herself and establish who is appearing for the parties in the
case.
 The arbitrator might also explain broadly how the process is going to unfold, her role and
powers, how the parties should address her and what the parties' rights are in the arbitration
process.
 Arbitrator will establish whether either of the parties has any preliminary issues relating to:
1) the arbitrator's jurisdiction to arbitrate the matter, or
2) whether the arbitrator should recuse herself because she has some interest in the case or
connection with a party that gives rise to a reasonable apprehension of bias.
5.6.2 Opening statements
 the arbitrator will permit the parties to make a short opening address outlining the case which the party
will seek to make out before the arbitrator.
 The advantages of doing this are:
1) it puts the arbitrator in the picture as to how the presentation of the evidence is to be structured and
2) it enables her to form an over-of the case against which the detailed evidence can be better understood
and as it is being presented.
3) It also allows the arbitrator to sense what is in dispute and what is not, so that the number of issues in
dispute can be narrowed down in order to simplify and speed up the arbitration process.
4) The arbitrator will seek clarity on the relief being claimed and what is being challenged I. e substantive and
procedural fairness or just one of those.
•5.6.2 Presenting the case
•The party presenting its case first would proceed to call the witness or witnesses required to prove the case.
•The witnesses for one party should generally not all be present in the room at the same time. REASON?
 This is to avoid witnesses hearing what the other witnesses say and tailoring their own testimony
accordingly.
•Once the person has finished giving evidence, he or she may remain in the room where the arbitration is
taking place.
•NB It is useful to present a case bearing in mind the elements that are relevant to fairness in a case.
•So, for example, in an unfair dismissal case relating to misconduct the employer will have to lead evidence
relating to substantive fairness.
The employer would thus lead evidence that would show:
 That there was a rule prohibiting the employee's conduct. Disciplinary codes would be useful
evidence of this. A witness would have to introduce that doc­umentary evidence unless it was
admitted by agreement;
 That the rule was a valid and reasonable rule
 That the employee broke the rule (Here the employer would have to rely
on witnesses or documents or footage which shows that the employee committed
the alleged misconduct;
 That the employee knew or ought reasonably to have known of the rule (Evidence of this might
be the fact that disciplinary codes are posed on notice boards in the workplace, or that
employees are taken through what conduct is unacceptable when they join the employer.
 That the employer has consistently taken action against employees when they commit this kind of
misconduct (The evidence of a human resources person or other employees could confirm this).
 That dismissal was an appropriate sanction in the circumstances (Witnesses could testify regarding the
damage caused by the employee's conduct or why the employer considers the misconduct so serious that
dismissal was warranted. In addition, a witness might give evidence relating to the employee’s previous
disciplinary record.
5.6.3 Who leads evidence first?
 Usually as a result of the onus of proof falling on the employer (to show that the dismissal was
fair) it will be the employer’s representative who will be required to present the employer's case
first.
 However, in cases where there is a dispute as to whether the employee was dismissed the
employee is required to prove a dismissal before the employer will be required to justify the
fairness thereof and the employee would have to lead evidence first.
•The same applies to disputes to concerning alleged unfair labour practices: the employee must
prove that an unfair labour practice was committed and will therefore usually lead first.
5.6.4 Leading a witness/evidence in chief
•The representative should, to begin, with, ask the witness basic questions which establish:
 her identity and position within the company or relevant to the employee.
 The witness should then be asked to tell the arbitrator what happened on the day in question in her own
words.
 The representative should attempt to ask questions to clarify certain issues and to ensure that the witness
has told the arbitrator all the relevant facts about which she is qualified to testify.
•NB the representative should avoid asking leading questions of his own witness.
•I.E The content of the question must not be such that the answer which the representative wishes to elicit is
obvious from the content of the question.
NB This process of leading a witness is referred to as ‘evidence in chief’.
•The representative should be careful to cover all the material facts with the witness at
this stage of the process as it is not appropriate to cover new ground when giving
evidence in reply after cross-examination has been completed.
•If it is necessary to use a witness to prove the authenticity of a document or to
introduce a document in evidence, the representative should not forget to do so while
that witness is being led.
•It is often useful to have point form checklist for each witness highlighting all the
material issues which that witness must cover in evidence with a reference to each
document to which that witness needs to refer in evidence.
•Before completing a witness’ evidence in chief the representative would then double check that all
the relevant issues have been covered and that material documents of which that witness has
knowledge have been introduced.
•5.6.5 Cross-examination
•Once the representative has finished questioning his own witness, the arbitrator will then ask the
other party or his representative whether he wishes to ask the witness any questions.
•The employee party is then allowed to ask virtually any questions, including leading questions, of
the witness that he wishes.
•The only limi­tation on such questions is that they must be relevant to the issue at hand. This
process is called 'cross-examination' of the witness.
•NB Cross examination is also an opportunity to:
1) draw out any inconsistencies I.e the evidence of the witness, and
2) to challenge any contradictions between that witness's evidence and any evidence which may
previously have been given by another witnesses.
5.6.6 Re-examination

•When the opposing party's representative has finished cross-examining the witness, the representative who
called the witness may, if there are any issues which have arisen out of the cross-examination that require
clarification, re-question tin witness.
•Such re-questioning (which is called 're-examination') must be limited only to:
 issues which have arisen pursuant to the cross-examination of the witness.
•NB if there are no such issues that have arisen, the representative should decline the opportunity to re-
examine the witness.
5.6.7 Case in response
•After all of the available evidence has been led on behalf of the party who led evidence first (usually the
employer in unfair dismissal cases and the employee in unfair labour practice cases) and his case has been
closed, the other party must be given an opportunity to lead any witnesses which she may wish to call.
•Once the opponent has finished leading a witness, that witness can be cross-examined.

•After cross-examination, the opponent's representative will have an opportunity to re-question any witnesses
with regard to any issues which were raised during cross-examination.
•Once the opponent has called all the witnesses relevant to his case, the parties should each have an
opportunity to argue their case, either orally or at a later date, if the parties and the arbitrator agree.
•5.6.8 Argument
 The party who led evidence first has the opportunity to argue first.
 He will need to show eg that:
 the evidence presented to the arbitrator establishes the guilt of the employee on the charge laid against
him, on a balance of probabilities, and that
 the penalty imposed was appropriate in the circumstances.
 the inconsistencies and contradictions in the evidence led on behalf of the employee and to draw attention
to the consistency of the evidence led on behalf of the company (provided that this exists).
•NB The appropriateness or otherwise of the sanction can be argued with reference to standards set by the
employer (including those contained in the disciplinary code, if applicable), past precedent at the company and
similar previously decided cases.
•It is at this stage in the proceedings that the employer's representative would reference to any relevant case law
or legislation
•NB The employee or her representative will then be allowed an
opportunity to argue that the evidence before the arbitrator indicates
the employee's innocence, in the same way as set out above.
•Thereafter, the employer's representative will have another
opportunity to argue in reply to any issues raised by the employee or
her representative during their argument.
5.6.9 The award
•After hearing the parties' evidence and argument, the arbitrator will consider the
evidence as well as the applicable law, apply the law to the facts and make a deci­
sion (the 'award').
•NB In the case of CCMA arbitration the award should be rendered within fourteen
days of the arbitration hearing.
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