Into the fray: Clarity on the Commissioner’s role at arbitration

Section 138 of the Labour Relations Act provides that a commissioner may conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities.

However, section 138 does not ban all formality. The Labour Court held in South African Revenue Service v Commission for Conciliation, Mediation and Arbitration and Others (3 April 2023) that section 138 merely requires ‘minimal formality’. It was held further that in deciding on how much formality is permissible one must be careful not to sacrifice fairness on the altar of informality. A balance must be struck to ensure that the impartiality of the proceedings are not compromised.

The background to this matter, in short, entailed that the employee was employed as an investigator from 2008 up until date of dismissal in 2019. The employee was dismissed for misconduct involving bribery, corruption and dishonesty. The employee had contacted a certain individual and told him to ‘look the other way’ when inspecting a container and in return he would be well taken care of. This container, when inspected by this individual, contained undeclared goods which included counterfeit goods to the value of about R10 to R12 million Rands. Upon being dismissed, the employee referred a case of unfair dismissal to the CCMA, seeking retrospective re-instatement.

At arbitration, the Commissioner found that the dismissal of the employee was substantively unfair and awarded reinstatement with back-pay. The employer took the matter on review at the Labour Court, arguing that the Commissioner committed gross misconduct in relation to her duties including bias, and committed gross irregularities in the conduct of the arbitration proceedings.

The Court recognised that during the arbitration proceedings, the Commissioner went further in her interventions than simply clarifying the evidence. The Commissioner took it upon herself to essentially cross-examine the employer’s witness, in an attempt to elicit evidence to the effect that this witness’s own prejudice, being that everyone who came from this certain department was corrupt, clouded his interpretation of what was said to him by the employee, and that in turn he was an unreliable witness.

The record was riddled with instances where the Commissioner interfered in the matter, so much so ignoring the role of the parties’ representatives. She often took over the presentation of the case, prematurely expressed her views about the employer’s conduct about the incident, expressed doubt regarding certain evidence put forward, solicited hearsay evidence and appeared to be assisting one party to the detriment of the other.

Finally, the Court held that the Commissioner’s double-down on finding that even if the employee was guilty of the very serious charges that he faced (‘corrupt activities’), dismissal would not be an appropriate sanction, damaged any remaining perception that despite the Commissioner’s robust approach, fairness was maintained in the conduct of proceedings. The arbitration award was set aside and remitted for hearing anew before another commissioner.

Importantly, this case highlights the fact that although a commissioner may in terms of section 138 of the LRA, conduct arbitration proceedings in any way she/he deems appropriate, there is a very fine line between clarifying evidence and descending into the arena in a manner that would not be considered fair play. A commissioner does not have free license to engage in the proceedings as if she/he were a representative of one of the parties.

We trust that you found this article informative, please email info@hjw.co.za for assistance with dismissal disputes.

By Alexi Rosenzweig, candidate attorney, and Rowan Bauer, attorney, working in the employment law practice area at HJW Attorneys, a boutique law firm based in Fourways, Johannesburg.

This article is provided for informational purposes only and should not be substituted for legal advice on any specific matter. Any opinions expressed herein are subject to the law as at the time of writing and will change in accordance with any change in the law. We recommend that you contact HJW Attorneys at info@hjw.co.za directly for advice applicable to your specific matter.