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

Notices

Bargaining Council for the Fast Food, Restaurant, Catering and Allied Trades

Extension to non-parties of the Main Collective Agreement

31. Inquiry by an Arbitrator
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(1) An employer party to the Council may, in terms of this Collective Agreement, request the Council to appoint an arbitrator to conduct an inquiry into allegations about an employee's conduct or capacity: Provided that the employee has been advised of the allegations regarding his/her conduct or capacity.

 

(2) The request must be in the Council's prescribed form.

 

(3) Within 3 days of receiving a request in terms of sub clause (1) and a copy of the notice advising the employee of the allegations referred to in sub-clause (1), the Council must appoint an arbitrator and must notify the parties to the inquiry of when and where the inquiry will be held.

 

(4)Unless the parties agree otherwise the Council must give the parties at least seven days' notice prior to the commencement date of the inquiry.

 

(5) An inquiry by an arbitrator for parties to the Council shall not require payment of the prescribed fee provided the inquiry takes place at the premise of the Council. Should the inquiry take place at the premises of the Employer, the Employer shall bear the costs of the Arbitrator.

 

(6) In any inquiry in terms of this clause a party to the dispute may appear in person or be represented only by—
(a) a co-employee;
(b) a director or employee, if the party is a juristic person;
(c) an office bearer or official of that party's registered trade union or registered employer's organisation; or
(d) a legal practitioner on agreement between the parties if permitted by the arbitrator in accordance with the rules regulating representation at an arbitration before the Council.

 

(7) Section 138 of the LRA read with the changes required by the context, applies to any arbitration in terms of this clause.

 

(8) An arbitration appointed in terms of this clause has all the powers conferred on a commissioner by section 142(1)(a) to (e)(2) and (7) to (9) of the LRA read with the changes required by the context, and any reference in that section to the director for the purpose of this clause, must be read as a reference to:—
(a) the Secretary of the Council, if the inquiry is held under the auspices of the Council;
(b) the Director of the accredited agency, if the inquiry is held under the auspices of an accredited agency.

 

(9) The ruling of the arbitrator in an inquiry has the same status as an arbitration award and the provisions of section 143 to 146 of the LRA apply with the changes required by the context to any ruling made by an arbitrator in terms of this clause.

 

(10) An arbitrator conducting any inquiry in terms of this clause must, in the light of the evidence presented and by reference to the criteria of fairness in the LRA rule as to what action, if any, may be taken against the employee.

 

(11) The Council may only appoint an arbitrator to conduct an inquiry in terms of this clause in respect of which the employer or the employee is not a party to the Council, if the Council has been accredited for arbitration by the Commission and with the consent of the employee.
(a) An employee may only consent to an inquiry in terms of sub clause (10) after the employee has been advised of the allegation referred to in sub clause (1).
(b) The request must be in the Council's prescribed form.
(c) The Council must appoint an arbitrator on receipt of:
(i) Payment by the employer of the prescribed arbitration fee;
(ii) The employee's written consent to the inquiry;
(iii) a copy of the notice advising the employee of the allegations referred in sub clause (1).

 

(12) The holding of an inquiry by an arbitrator in terms of this clause and the suspension of an employee on full pay pending the outcome of such an inquiry do not constitute an occupational detriment, as contemplated in the Protected Disclosures Act, 2000 (Act No. 26 of 2000).