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Thinking of using pre-dismissal arbitration? Consider these five disadvantages first

by , 01 October 2014
Pre-dismissal arbitration is a process that occurs in the place of a disciplinary enquiry and subsequent proceedings, which are heard by the CCMA.

Here, you agree with your employee to ask the CCMA, a council or an accredited agency to appoint an arbitrator to conduct a pre-dismissal arbitration, which will replace an in-house disciplinary enquiry and internal appeal procedure.

The outcome is a final and binding arbitration award. After this, you and your employee can't follow any further dispute resolution mechanisms, such as conciliation or arbitration.

If you're thinking of using this process, we urge you to first consider the following five disadvantages that come with pre-dismissal arbitration.

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Here are the five disadvantages of using pre-dismissal arbitration

#1: There's no compulsion on employees to participate, you require ad hoc consent with lower earners.

Essentially, you, as the employer, will need to persuade employees that pre-dismissal arbitration is in their best interests.

#2: You'll no longer have managerial control of discipline and performance. Pre-dismissal arbitration removes this power from your hands.

So, you may want to think carefully about handing over the power to discipline employees to an outsider.

#3: According to the Labour Law for Managers Loose Leaf Service, you're dependent on the external appointment of an unknown arbitrator, whose skills, ability and reliability are unproven ahead of the pre-dismissal arbitration.

#4: You only have one opportunity to present a case for dismissal, there's no appeal opportunity for either party.

#5: There may be logistical delays by the CCMA or bargaining council, which may jeopardise your ability to respond immediately to serious misconduct.

Now that you know about these disadvantages, make sure you consider them before you use pre-dismissal arbitration.

If you have any questions about pre-dismissal arbitration, ask our experts at the Labour & HR Club.

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