Commission for Conciliation, Mediation and Arbitration (CCMA) and bargaining council commissioners must conduct arbitration impartially and in an unbiased fashion. When there is a perception of bias, a party can challenge the offensive conduct.
This is precisely what occurred in a recent Labour Court case between Dorothy Khosa v City of Johannesburg & 2 others (Case no: JR135/16). As noted in the judgment, “The main grounds for this review is that it is contended that the commissioner failed to apply his mind, committed misconduct, was biased, committed a gross irregularity and/or acted unreasonably or unjustifiably and/or irrationally, in that he descended into the arena of the conflict between the parties and thus prevented himself from assessing with due impartiality the credibility of the witnesses and the probabilities relating to the issues”.
It was further argued that: “In support of these grounds, (the applicant contended) that the commissioner failed to respect the roles of the parties’ respective representatives and assumed to himself the role of leading evidence and conducting cross-examination; that he failed to conduct the arbitration proceedings in a fair, consistent and even-handed manner; that the nature and scope of the commissioner’s interventions were such that he failed to afford the parties a fair hearing and that his conduct gave rise to a reasonable apprehension of bias.”
Apprehensions of bias occur frequently at the CCMA and bargaining councils. Let’s face it, in every arbitration hearing there is a winner and a loser. The losers can be prone to blaming a one-eyed commissioner for the loss, rather than face up to the fact that they may have simply lost on the merits or demerits of their case.
The judgment also quoted Baur Research v Commission for Conciliation, Mediation and Arbitration and others as follows, “What this means is that where it comes to an arbitrator acting ultra vires his or her powers or committing misconduct that would deprive a party of a fair hearing, the issue of a reasonable outcome is simply not relevant.
“In such instances, the reviewable defect is found in the actual existence of the statutory prescribed review ground itself and if it exists, the award cannot be sustained, no matter what the outcome may or may not have been. Examples of this are where the arbitrator should have afforded legal representation but did not or where the arbitrator conducted himself or herself during the course of the arbitration in such a manner so as to constitute bias or prevent a party from properly stating its case or depriving a party of a fair hearing. The reason for reasonable outcome not being an issue is that these kinds of defects deprive a party of procedural fairness, which is something different from the concept of process related irregularity.” [2014 (35) ILJ 1528 (LC).
So, had the commissioner “descended into the arena of the conflict between the parties and thus prevented himself from assessing with due impartiality the credibility of the witnesses and the probabilities relating to the issues”? Not so, the court held.
On the contrary, it was held that: “The commissioner was, on a holistic consideration of the record, even-handed and consistent in his approach in relation to questioning witnesses. He did not seek to undermine (applicant’s) case in soliciting the information he did. There is in the circumstances, no basis on which to conclude that a reasonable apprehension of bias arose.
“(The applicant) had the onus to show that the commissioner acted mala fide and in breach of his duties so as to afford City of Johannesburg an unfair advantage. She failed to do.”
The judgment continued that: “I believe that the commissioner conducted the arbitration proceedings in a fair and proper manner. Where he intervened in the proceedings, it was simply for the purposes of clarity and to steer the process”.
Tony Healy is a labour law expert at labour law consultancy Tony Healy & Associates. Call 0861 115 375.
Email [email protected] or visit www.tonyhealy.co.za