Training Labor Arbitrators in South Africa
Zack, Arnold M., Dispute Resolution Journal
The American system of grievance arbitration has provided a peaceful means of resolving workplace disputes in the unionized sector. South Africa has extended that approach by including the entire workforceunionized or not. The introduction of that structure through the CCMA has created a need for the training of South African neutrals. The following article describes the recent visits of eight arbitrators from the National Academy of Arbitrators to South Africa where they conducted training programs designed to boost the fairness of the system.
For two decades, collective bargaining in South Africa has provided contractual procedures for arbitration of dismissal and other issues. In 1995, the new government leapfrogged past North American procedures by creating the Commission for Conciliation, Mediation, and Arbitration
(CCMA) to extend the right to arbitration to all employees, unionized or not. For the past two years, a number of arbitrators-memhers of the National Academy of Arbitrators (NAA)-have volunteered their services to mentor the COVIA's arbitrators. Their most recent trip in December 1999' was directed to training in decision writing.
Arbitration has long been the accepted procedure for resolving questions of unjust dismissal in the United States and Canada. These countries have been unique in using collective bargaining negotiations to develop a private dispute resolution system and the industrial jurisprudence that has flowed from this system.
In South Africa, following the 1979 Weihan Report and the right of black workers to join unions, early efforts at recognition agreements occurred in the early 1980s. The disputes between workers and their employers often focused on challenged dismissals, which frequently led to job actions. In 1984, the Independent Mediation Service of South Africa (IMSSA) was established with the assistance of the Ford Foundation to provide a venue where disputing parties could turn for the peaceful resolution of challenged dismissal and other disputes through mediation and arbitration. IMSSA arbitrators followed the North American model for arbitration. Since 1985, when Richard Bloch began training IMSSA neutrals, they have also called upon Tom Colosi, Jim Power, Jim Oldham, and me to evolve an arbitration system based upon the standards of procedural and substantive fairness for challenging dismissals in the country's unionized sector.
But, as in the U.S. and Canada, the protections of arbitration extended only to those working under negotiated agreements. Those beyond the ambit of collective bargaining in South Africa, as in North America, had no such rights or access to arbitration to challenge their dismissals.
The Creation of the CCMA
In Labor Relations Act #66 of 1995, the new government in South Africa undertook to remedy that restricted access by protecting against unjust dismissal through the creation of the CCMA. The commission provides a direct access to conciliation and arbitration for employees who charge their employer with unfair dismissal. All employees have access to the commission regardless of unionization, and the procedures extend to agricultural employees and domestic workers. An employee may be dismissed only if there is a fair procedure applied in the dismissal and there is a fair reason for the discharge. The employee must prove that there has been a discharge, after which the onus shifts to the employer to prove the fairness of the discharge. That access to CCMA is direct and, unlike in North America, no grievance procedure or union approval are required for arbitration of such issues.
Despite the enormous social, political, and economic pressures surrounding the end of apartheid, this new agency has pushed South Africa to the head of the line in providing a neutral forum for assuring a just-cause or fairness standard in dismissing employees. The immediate provision of such a forum for all the nation's employees raised obvious staffing problems for a country where collective bargaining itself is a relatively new phenomenon. …