Ekurhuleni Metropolitan Municipality v SALGBC (JR1811/14) [2016] ZALCJHB 513 ; [2017] 4 BLLR 399; (2017) ILJ 1820 (15 December 2016) per A van Niekerk J.

After a careful perusal of the record the labour court reviewed and set aside an award because of the active engagement of the arbiter in the proceedings and for overstepping the mark.

‘It is difficult to convey the magnitude of the extent to which the commissioner actively engaged in the proceedings but read as a whole, the transcribed record reflects that the arbitrator failed to respect the roles of the parties’ respective representatives and assumed to herself [sic] the role of leading evidence and conducting cross-examination.  The scope of the arbitrator intervention, was clearly not confined to seeking clarity in respect of matters raised by the questions put to witnesses by the parties’ representatives.  The parties’ representatives were, in effect, reduced to the role of spectators.  The arbitrator’s conduct was in clear breach of the above principles’.

Excerpts from judgment

[1]   This is an application in which the applicant seeks to review and set aside an arbitration award issued by the second respondent, to whom I shall refer as ‘the arbitrator’.  In his award, the arbitrator held that the third respondent (the employee) had been unfairly dismissed and ordered his reinstatement.

[2]   The proceedings under review commenced on 13 May 2014.  On that date, the arbitrator recused himself.  He did so, it would seem, on the basis that he had presided at the conciliation meeting and a concern that he had knowledge of the facts of the case that may have compromised him as an arbitrator.  The parties were advised that the matter would proceed before another commissioner.  This notwithstanding, the arbitrator later decided to rescind that decision and reinstate himself as arbitrator.

The record discloses that the arbitrator had taken the matter up ‘with my bosses” and that the matter had again been set down for hearing before him.  The matter proceeded on 27 June 2014 when the applicant in the present proceedings moved an application for recusal.  The application was based on the submission that the arbitrator, by virtue of his prior engagement in the case, had prejudged the matter, a submission that was sustained by the arbitrator’s prior decision that he should recuse himself.  The application was refused.  The arbitrator indicated that he would give a ‘full ruling when the time arises’.  No full ruling is apparent from the record, nor is there any full reasoning for the ruling contained in the award.

. . . . .

[8]   Finally, in relation to the manner in which the arbitration proceedings were conducted, the applicant submits that the arbitrator failed to conduct the proceedings in a fair manner and that he intervened in the proceedings to such an extent so as to deny the parties a fair hearing.

[9]   The Labour Relations Act (LRA) sought to introduce a dispute resolution system that would resolve labour disputes expeditiously, informally and inexpensively.   Section 138(1) of the Act promotes this purpose and in relation to the conduct of arbitration hearings under the auspices of the first respondent (the CCMA) provides the following:

“The 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”.

[10]   The injunction to conduct the proceedings with the minimum of legal formality may justify a decision by a commissioner to conduct proceedings with less regard for the formality that ordinarily characterises a trial in this court or any other civil court, but it is not an invitation or a license to disregard the parties’ right to a fair hearing.  The broad principle that emerges from the case law is that commissioners (and judges) ought to exercise caution when they intervene in the proceedings over which they preside.

. . . . .

[13]     The CCMA’s practice and procedure manual advises arbitrators generally to opt for an inquisitorial approach or an adversarial approach in arbitration proceedings.  The manual goes on to advise commissioners (at paragraph 12.3.5) that irrespective of the approach adopted, an arbitrator must conduct the arbitration impartially and not engage in conduct that might reasonably give rise to a party forming a perception of bias.

[14]      The CCMA guidelines and misconduct arbitration (at paragraph 33) suggests that when the parties are primarily responsible for calling witnesses and presenting their evidence and cross-examining the witness of other parties an adversarial approach is to be recommended.  An inquisitorial approach, on the other hand, he suggested if one or both parties is unrepresented, or where a representative is not experienced.  The guidelines warn that arbitrators adopting an inquisitorial approach must be careful to ensure that the parties are aware of and have the opportunity to exercise their rights under s 138(2).

[15]      The guidelines go on to suggest that when an arbitrator questions witnesses, whether in an inquisitorial or adversarial process, the arbitrator should explain to the parties the reason for seeking the information sought and must allow the parties to address questions to witnesses on any issues raised by the additional evidence.  In short, when an arbitrator adopts an inquisitorial role in arbitration proceedings, the commissioner may not abandon the well-established rules of natural justice.  On the contrary, it calls for greater vigilance on the part of the commissioner particularly since the interventionist role that he or she adopts might easily lead to a perception or apprehension of bias, especially on the part of a lay litigant (Mutual & Federal Ins Co v Commission for Conciliation, Mediation & Arbitration & others [1997] 12 BLLR 1610 (LC)).

[16]      The guidelines are consistent with judgments of this court and in particular, the judgment in Vodacom Service Provider Co (Pty) Ltd v Phala & others (supra).  That decision, it will be recalled, specifically contemplated that the objective of fair, consistent and even-handed proceedings precluded commissioners from assisting the party to the detriment of the other, putting propositions to witnesses, interrupting witnesses answers, challenging the consistency of a witness, indicating doubt as to witnesses credibility or making submissions regarding the construction of evidence.

[17]      In the present instance, in my view, and after a careful perusal of the record, the commissioner’s conduct was such that he overstepped the mark.  It is difficult to convey the magnitude of the extent to which the commissioner actively engaged in the proceedings but read as a whole, the transcribed record reflects that the arbitrator failed to respect the roles of the parties’ respective representatives and assumed to herself the role of leading evidence and conducting cross-examination.  The scope of the arbitrator intervention, was clearly not confined to seeking clarity in respect of matters raised by the questions put to witnesses by the parties’ representatives.  The parties’ representatives were, in effect, reduced to the role of spectators.  The arbitrator’s conduct was in clear breach of the above principles.

[18]      For the above reasons, in my view, the arbitrator’s award stands to be reviewed and set aside.  Since the basis for the review is that the parties were denied a fair hearing, it is appropriate that the matter be remitted to the first respondent for rehearing before an arbitrator other than the second respondent.”