Article 40/2021

Labour Edge

To what extent is an arbitrator entitled to alter the duty to begin and the discharging of the onus?


  1. in arbitration proceedings before the CCMA, it is not uncommon for commissioners to be confronted with a less than ideal scenario where a representative of the employer also acts as its witness. Equally so, it is not uncommon for employees to represent themselves in those proceedings and to lead their own evidence. It was the labour court’s view, however, that, irrespective of the circumstances of the case, the question of the duty to begin and discharging the onus in dismissal disputes is a statutory requirement imposed by the provisions of s192 of the LRA. Those provisions cannot be circumvented for the sake of convenience or expedience;
  2. there is a dispute as to whether the commissioner had compelled Langa to testify first, or whether, as the commissioner had stated in the award, Langa had offered to begin. The record of proceedings, however, indicated that the parties had reached agreement on who should begin. The labour court believed that that dispute was inconsequential, as, in line with the provisions of s192 of the LRA, it was for the commissioner to simply remind the parties what their statutory obligations were in regard to the issue of onus, and to give direction in regards to the duty to begin irrespective of the constraints (if any) Langa was faced with; and
  3. to the extent that the commissioner first heard the evidence of Langa, when the duty to begin and to discharge the onus in regards to the dismissal was on Muguto, there could be no doubt that the commissioner had clearly misconceived the question of onus, and had committed a gross procedural irregularity, which, on its own, rendered the award reviewable. That irregularity had prevented Pikitup from having its case fairly heard, or prevented a fair trial of the issues.

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