PLANNING FOR ARBITRATION: EVIDENCE, WITNESSES, AND REPRESENTATION
Written by Melissa Botha
Why preparation matters
Being cited as the respondent in a CCMA or bargaining council arbitration can be unsettling for any establishment owner, particularly when a former employee, your team’s morale, and your reputation in the community are all involved. The good news is that careful preparation goes a long way. CCMA or bargaining council arbitration is a formal dispute-resolution process in which a commissioner hears evidence from both sides and issues a binding decision, known as an arbitration award. It usually follows unsuccessful conciliation and commonly deals with unfair dismissal, misconduct, incapacity, retrenchment, and unfair labour practice disputes. Our industry falls under the National Bargaining Council for the Hairdressing, Cosmetology, Beauty and Skincare Industry (HCSBC), and disputes that fall within its jurisdiction are heard in terms of the Main Collective Agreement. An employee may nevertheless open a case at the CCMA. Should that happen and the matter fall under the council’s jurisdiction, we will, with the assistance of the Employers’ Organisation for Hairdressing, Cosmetology and Beauty (EOHCB), request that the case be transferred to the National Bargaining Council, so that it is heard in terms of the Main Collective Agreement. It is therefore very important to act quickly and confirm the correct forum from your referral documents as soon as you receive them.
Know who carries the burden of proof
In a dismissal dispute, section 192 of the Labour Relations Act places the initial burden on the employee to show that a dismissal took place. Once that is established, the employer must prove that the dismissal was fair. This means that you carry the heavier burden. You must show a fair reason related to conduct, capacity or operational requirements (substantive fairness) and that a fair process was followed before the decision was made (procedural fairness). Many owners assume that the outcome of the internal disciplinary hearing is enough. It is not. Arbitration is a fresh hearing, and the chairperson’s finding does not, on its own, prove that the underlying conduct occurred. You will need witnesses and source records. The Code of Good Practice: Dismissal, published in September 2025, is the current official code, so select your evidence according to the test that applies to the dismissal in question rather than treating every case as misconduct.
Check the arbitration details carefully
Start by reviewing every document received from the CCMA or council. Confirm the date, time, venue, case number, and whether the arbitration will be held in person, by telephone, or online. Check the type of dispute referred, any document-exchange deadlines, the rules on representation and whether an interpreter is needed. Diarise the hearing in more than one calendar day and arrange cover for your establishment because key staff and witnesses may be away from the floor for most of the day. If you cannot attend, contact the CCMA or council’s case-management office immediately. Failing to attend without a reasonable explanation can result in the matter proceeding in your absence, and an award may be granted against you by default.
Build a timeline and an issue map
Write down what happened from the first relevant event until the dispute was referred. Include dates, the people involved, what was said or done, and the document that supports each important event. Then identify the actual question the commissioner must decide—whether it concerns a dismissal, an unfair labour practice or an amount allegedly owing—and link each fact you need to prove to a witness and a record. For example, in an abscondment or misconduct matter, identify the rule allegedly broken, when the breach occurred, how the employee knew of the rule, whether it was applied consistently and whether the employee was given a genuine opportunity to respond. An issue map is a preparation tool, not evidence, but it keeps you focused on what matters.
Gather and organise your documents
Good evidence is relevant, reliable and connected to the facts in dispute. Typical documents for an establishment include the signed employment contract and job description; payslips and proof of payment; attendance registers, rosters and time records; workplace rules and policies; proof that the rules were communicated; the charge sheet and notices; hearing minutes; the outcome and any appeal record; warnings and counselling records; and the termination letter. Add the CCMA or council referral, the certificate of outcome, and any pre-arbitration correspondence. Keep originals safe and work from copies. Do not alter a document, recreate a missing record or remove an inconvenient page, because an unexplained alteration can destroy your credibility.
Create a bundle with numbered pages and a simple index, grouped as follows: process and jurisdiction records; employment terms and policies; evidence about the incident; the internal disciplinary record; comparator or consistency evidence; electronic evidence; and remedy records. If the arbitration is in person, prepare at least three sets: one for yourself, one for the commissioner, and one for the employee. Follow any electronic filing directions issued by the CCMA or council instead. If you cannot explain in one sentence why a document matters, consider leaving it out, because more pages do not make a stronger case.
Handle digital evidence with care
In the beauty industry, much of the evidence lives on phones and systems: WhatsApp groups, booking software, till and stock records, access logs and CCTV. Screenshots can help, but they must show who sent the message, when and in what conversation. Keep the full exchange or an export, the original device or file where possible, and a note of how you obtained the record. Section 15 of the Electronic Communications and Transactions Act provides that a data message is not inadmissible merely because it is electronic, but reliability, integrity and the identity of the originator affect its weight. Do not access an employee’s personal phone or accounts, or take confidential information, without lawful authority. If the employee holds material you need, or you need access to material held by a third party, request the specific records early and keep proof of the request. Where necessary, CCMA Rule 29 provides a formal disclosure process, subject to timing requirements and the commissioner’s discretion.
Choose and prepare your witnesses
A witness must have direct knowledge of a relevant event. A manager who only read the final outcome may add little, whereas the colleague who saw the incident or the person who chaired the hearing may be essential. Choose witnesses by issue, not by seniority or number. Speak to each witness in advance, but never coach them to give a scripted version. Explain the process, remind them to tell the truth, and help them understand the topics they may be asked about. Ask them to review the relevant documents, prepare a factual timeline, distinguish what they personally saw from what they were told, and be ready to explain inconsistencies honestly. A written statement may help to identify their account, but it is not a substitute for testimony that can be tested under questioning.
Be sensitive when your witnesses are current employees who may feel awkward about testifying against a colleague, or clients whose attendance may disrupt their day. Do not pressure anyone. If an essential witness will not attend voluntarily, CCMA Rule 37 provides a subpoena process using LRA Form 7.16 and a written motivation. Confirm the current timing, service, fee and travel requirements for your matter well before the hearing.
Representation
An employer may usually be represented by the owner, a director, an employee or an official of its employer's organisation. Legal representation is permitted in arbitration, unless the dispute concerns dismissal for misconduct, ill-health or poor performance, or certain BCEA disputes. In those cases, the parties and commissioner may agree to legal representation, or a party may apply for permission in terms of Rule 25(1)(c). Confirm the position before the hearing and give your representative enough time to study the bundle and understand the outcome you seek. Even with representation, you must understand your own case, because you know the establishment, the people and the workplace history best.
What to expect on the day
Arrive early if the hearing is in person and bring your identification, the bundle, a notebook, pens, and water. The commissioner will usually explain the process and deal with preliminary issues such as attendance, representation, jurisdiction, and documents. The usual sequence is opening statements, evidence, rebuttal if allowed, closing arguments, and the award. Because the employer must prove fairness, you may be asked to lead evidence first in a dismissal dispute. The exact order can vary, so follow the commissioner’s directions and ask politely if you do not understand a procedure. Stay calm and respectful, even if the employee’s account feels unfair or personal.
Your opening statement should be a short roadmap: who the employee was, when and why the employment ended, why you say the dismissal was fair, which documents and witnesses you rely on, and what outcome you ask for. When giving evidence, state what happened, give the date, identify who was involved, explain how you know, refer to the supporting document, and explain why it matters. Listen to the full question, pause, answer truthfully and directly, do not guess, and correct a genuine mistake promptly. A small error about a date will not necessarily sink your case, but denying an obvious document or changing your story without explanation will. Finish with a short closing argument that sets out which facts are common cause, which are disputed and why your version is more probable.
Prepare for remedy
Liability and remedy are separate questions. If the employee seeks reinstatement, re-employment or compensation, the commissioner may need facts about service, earnings and benefits, and whether returning to work is reasonably practicable. If you say reinstatement is not workable, for instance because the employment relationship has broken down or the position no longer exists, support that with a witness and reliable records. Keep payroll records and any evidence relevant to the employee’s later income.
Common mistakes to avoid
Avoid missing deadlines, submitting irrelevant material, relying on hearsay, relying only on the internal finding, ignoring your weak points, attacking personalities, posting about the case on social media, and treating a settlement discussion casually. Read any settlement terms carefully before signing.
After the award
The commissioner may issue the award immediately or at a later stage. Read it carefully, including the finding, the remedy, and any deadlines for compliance. An award is generally binding. If you believe the commissioner made a reviewable legal or procedural error, a Labour Court review may be possible, but strict time limits apply, and simply disagreeing with the outcome is not enough. Seek advice quickly. The strongest cases are organised, focused and supported by credible evidence. You do not need to sound like a lawyer; you need to explain what happened and show why your version is more probable.
If your establishment receives a notice of set-down or a referral, do not wait. Contact your nearest EOHCB representative as soon as the notice arrives, so that you receive the right assistance and representation throughout the case. Early involvement gives us time to check the forum, request a transfer to the National Bargaining Council where applicable, help you assemble your documents and prepare your witnesses. Timely preparation often makes the difference between a successful outcome and a costly one.
Checklist: basic documents to take to arbitration
CCMA or council notice of set-down, referral and certificate of outcome
Signed employment contract, amendments and job description
Payslips, proof of payment and leave records
Attendance registers, rosters and time records
Workplace rules, policies and Main Collective Agreement provisions applicable at the time
Proof the rules were communicated (signed acknowledgement, induction or training record)
Warnings, counselling and performance records
Charge sheet, notice of hearing and proof of service
Disciplinary hearing minutes, finding, sanction and appeal outcome
Incident evidence: statements, CCTV, till, stock or booking records, messages
Comparator records showing how similar cases were treated
Full electronic exports with sender, date, time and source noted
Remedy records: earnings, benefits and any relevant reinstatement correspondence
Numbered, indexed bundle with at least three copies, or electronic copies as directed
Your timeline, issue map, opening statement and closing argument notes
Identity document, notebook and pens
Checklist: preparing your witnesses
Confirmed what each witness personally saw, heard, did, or recorded
Matched each witness to the relevant bundle pages
Identified what falls outside their knowledge
Checked for any prior statement that may contradict their account
Explained the process and the order of evidence
Reminded them to tell the truth in their own words, without a scripted version
Asked them to review their documents and prepare a factual timeline
Prepared them for cross-examination, including difficult questions
Confirmed voluntary attendance, or applied for a subpoena (Rule 37, Form 7.16) in time
Arranged an interpreter or other assistance if needed
Arranged cover for their duties and confirmed time, venue or online link
Reminded them to bring identification and to arrive early
