Labour Relations Act, 1995 (Act No. 66 of 1995)

Commission for Conciliation, Mediation and Arbitration

Guidelines on Misconduct Arbitration

A: Purpose and Nature of Guidelines

Interpretation of the law
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(4)To the extent that these guidelines advance an interpretation of the law, that interpretation is the policy of the CCMA and should be applied unless the arbitrator has good reason for favouring a different interpretation.

 

(5)An arbitrator who adopts a different approach must set out the reasons for doing so in the relevant award.

 

(6)The CCMA. and all its Commissioners are obliged to interpret and apply the Labour Relations Act and other legislation in accordance with judicial decisions of courts that are binding on it. These include the decisions of the Constitutional Court, the Supreme Court of Appeal, Labour Appeal Court, High Court and Labour Court.

 

(7)Commissioners must follow the interpretation placed upon a provision by the most recent binding decision of the highest court dealing with that provision. If there are inconsistent decisions by the Labour Court interpreting a provision, and there is no relevant decision by a higher court, an arbitrator should consider the inconsistent decisions, decide which decision to follow, and give reasons for doing so.

 

(8)Commissioners should be cautious when considering the decisions of the Industrial Court, the Labour Appeal Court and other courts interpreting the 1956 Labour Relations Act (Act 28 of 1956). When doing this, commissioners should compare the approaches of the current LRA and the 1956 Act on the topic under consideration and should consider whether the pre-1995 jurisprudence is consistent with the principles of interpretation set out in section 3 of the current LRA.

 

(9)The CCMA has developed these guidelines in accordance with judgments that are binding on it. If any interpretation is reversed by a binding decision of a court, commissioners must apply that interpretation of the law.

 

(10)These guidelines are by their nature general in their application and cannot cover the full range of issues that may confront arbitrators in dismissal arbitrations. An arbitrator must make decisions that are fair and reasonable in the light of the specific circumstances of the case. Section 33(1) of the Constitution states that everyone has the right to administrative action that is lawful, reasonable and procedurally fair. Every decision by an arbitrator must comply with these three elements.