If conciliation did not settle your dispute, this is what comes next.
This guide explains how you get there, who has to prove what, what the day looks like and what the award means. It explains the process generally. It is not advice about your own case.
How you get to arbitration
Conciliation has to happen first, and it has to have failed. The commissioner issues a certificate that the dispute remains unresolved, and that certificate opens the next stage. See What actually happens at CCMA conciliation.
You then request arbitration, on the CCMA's form for that purpose, within the period the Act allows after certification. Condonation is possible if you are late, and it is no more automatic here than it is at the referral stage.
If your matter was set down as con-arb, the arbitration follows immediately after the conciliation on the same day, with no separate request.
Not every dismissal dispute is arbitrated at the CCMA. Some categories go to the Labour Court instead.
Who has to prove what
This is the most useful thing to understand before you walk in, and the thing most people have backwards.
You have to prove that you were dismissed. Usually that is easy, because there is a letter. It is not easy where the employer says you resigned, or abandoned your job, or that a fixed term contract simply ended.
Once dismissal is established, the employer has to prove that the dismissal was fair. The burden is on them, not on you. You do not have to prove your innocence. They have to prove they had a fair reason and followed a fair process.
That does not make it a formality. An employer who arrives with the warnings, the hearing minutes, the policy you signed and a witness has discharged a lot of that burden before you have said anything. Substantive and procedural fairness: the two tests explained is what they will be arguing against.
What the day looks like
Arbitration is meant to be dealt with fairly and quickly, with the minimum of legal formalities, so it does not look like a courtroom on television. It still has a shape.
Opening. The commissioner explains the process, confirms what is in dispute and what is agreed, and deals with any preliminary points.
Documents. Both sides usually hand up a bundle. Take enough copies. Anything you want the commissioner to see has to be in front of them, and a document on your phone is not in the bundle.
Evidence. Witnesses give evidence under oath, one at a time. The other side may cross-examine each of them. Then you may cross-examine theirs.
Cross-examination is the part people are not ready for. If you disagree with something a witness says, you have to put that to them at the time. Saying it afterwards in your closing carries much less weight.
Closing argument. A short summary of why, on the evidence that was actually led, the dismissal was or was not fair.
Proceedings are recorded. An interpreter is available and free if you ask for one, and it is worth asking if you would rather give evidence in your own language.
Who may appear with you
You may appear in person, or be represented by a member, office bearer or official of your registered trade union. A co-worker cannot represent you.
Legal representation is restricted at the arbitration of a dismissal for misconduct or incapacity. A lawyer may appear only if the commissioner and all the other parties agree, or if the commissioner decides it would be unreasonable to expect a party to deal with the dispute without one, looking at the legal questions involved, how complex the case is, the public interest, and how evenly matched the two sides are.
The restriction exists to keep the forum accessible. It is also why an unrepresented worker is not unusual there.
The award
The commissioner issues a written award, with reasons, within the period the Act sets after the arbitration is concluded.
The award is final and binding, and it can be enforced. It is not a recommendation and neither side can simply ignore it. If the employer does not pay, there is a process for enforcing it rather than starting again.
If the dismissal is found unfair, what the commissioner may order is reinstatement, re-employment or compensation. That is the subject of What compensation can the CCMA award, and it is worth reading before you decide whether arbitration is worth your months.
If the award goes against you
There is no appeal on the merits. What exists is a review to the Labour Court, on narrow grounds and within a short period.
Two things matter about that. A review is not a second hearing, so you do not get to lead the evidence you wish you had led. And it is a court, where legal representation is the norm and costs are a real risk.
For most people, the arbitration is the end of the road. Prepare for it as though it is.
What arbitration costs you
The CCMA does not charge a fee. The costs are the ones nobody puts on a page: unpaid days off, transport, copying, and the months between referral and award during which the dispute sits in your head.
A commissioner may make a costs order in limited circumstances, so it is not true that nobody ever pays costs at the CCMA. It is unusual.
The honest part
Arbitration is where weak cases become visible, in public, after you have already spent the time. Plenty of people refer in good faith, sit through conciliation, decline an offer that looked insulting, and then lose at arbitration and receive nothing.
That is not an argument against arbitrating. It is an argument for knowing which kind of case you have before you get there, because the decision that actually costs money is the offer you turn down at conciliation.
FairCase gives you a written read on whether an unfair dismissal case is strong or weak: a probability score with the calculation shown, a settlement range, the fairness analysis, and the risks in your own facts. Including when the honest answer is that your case is weak, which is the answer that saves you the most.