Easier To Take Errant Arbitrators To Task

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The CCMA’s policy guidelines for misconduct dismissal arbitrations that became effective in January 2012 increases the obligation on commissioners to conduct themselves properly when arbitrating such matters. 


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The CCMA’s policy guidelines for misconduct dismissal arbitrations that became effective in January 2012 increases the obligation on commissioners to conduct themselves properly when arbitrating such matters.
These guidelines, backed up by the law, pave the way for employers and employees to take the arbitrator’s conduct on review to the Labour Court if they are able to prove that the arbitrator, in making his/her award, has materially broken a rule thereby committing ‘misconduct’. This is different to an appeal because an appeal is lodged, not against the arbitrator’s conduct, but rather against his/her decision. 
Arbitrator ‘misconduct’ can and does occur in many different forms including, amongst others, bias, interrogation of witnesses, failure to keep records, ignoring of evidence, refusal to allow a party the right to question witnesses or bring evidence, failure to apply his/her mind, misconstruing of evidence, overstepping his/her authority and failure to consider statutory provisions. 
In the case of Prince vs CCMA and others (2005, 2 BLLR 159) the employee was fired for stealing money collected from the car park pay station. The arbitrator found that the employee had been involved in the theft and upheld the dismissal. The employee then applied to the Labour Court for a Review. The Labour Court found that the evidence led by the employer was inadequate as proof of the employee’s guilt. There had been other people who could have taken the money. 
The Court found that the CCMA commissioner’s award finding had not been based on the facts. As it is the duty of commissioners to take proper account of evidence, the Court found the CCMA award to be both unsustainable and unjustified. The employer was required to reinstate the employee with 44 months’ back pay plus interest. The employer was also ordered to pay the employee’s legal costs.
In South African Municipal Workers Union obo Mosoma v Greater Tubatse Local Municipality [2021] 5 BLLR 494 (LAC) the appellant employee was dismissed for misleading the Municipal Manager and for other irregularities. An arbitrator ruled the dismissal substantively fair but procedurally unfair, and awarded the employee four months’ compensation. The award was upheld on review. 
The Labour Appeal Court found that there was no evidence to support the arbitrator’s finding that the employee had misled the Municipal Manager and/or committed other irregularities. The appeal was upheld and the employee was reinstated with retrospective effect.
In an unreported case (Number JR 1606/04) the employee was reprimanded by a manager for failing to phone in while absent from work. The employee left his employment, went to the CCMA and claimed that he had been dismissed. At the CCMA the employer denied that the employee had been dismissed and brought substantial evidence to show that the employee had been instructed to return to work. 
During the arbitration hearing the commissioner frequently cross examined the employer’s witnesses and made remarks deriding the evidence of those witnesses. The arbitration award, which was in favour of the employee, failed to take into account the evidence brought by the employer. The employer’s manager later saw the employee and the arbitrator shaking hands. 
The employer took the arbitrator on review to the Labour Court claiming that the award failed to take the facts into account and that the arbitrator was biased. The Court found in favour of the employer and found the dismissal to be both procedurally and substantively fair.
Parties therefore need not give up if they truly believe that, on the proven facts, they were short changed due to irregular conduct on the arbitrator’s behalf.
However, even if the aggrieved party has evidence of arbitrator ‘misconduct’ it is difficult to persuade a court judge that this evidence amounts to solid proof meriting the overturning of the award. In the unreported case described immediately above the employer used proper labour law expertise in order to prove its case. Failure to use such expertise would most likely have resulted in the employer losing the case.
To book for our 17 September webinar on WINNING AT THE CCMA IN THE COVID ENVIRONMENT please contact Ronni at [email protected] or on 0845217492 or (011) 782-3066.

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