LC summary:

Review Application – whether commissioner committed misconduct or gross irregularities in arbitration proceedings – denial of right to representation and right to interpreter – denial of the right to an unbiased and fair hearing.

Numsa v Wainwright NO (JR 1060/10) [2015] ZALCJHB 48 (24 February 2015) per Venter AJ


[1] The application is to review and set aside an arbitration award made by the first respondent in his capacity as a commissioner of the second respondent, a bargaining council accredited by the Commission for Conciliation, Mediation and Arbitration (“the CCMA”) in terms of section 127 of the Labour Relations Act, 66 of 1995 (“the LRA”).  In terms of the award the first respondent held that the dismissal of the second applicant (“Mhlungu”) was fair.  The application has been brought in terms of section 145 of the LRA.

[2] There is also an application to dismiss the review application on the ground of the lengthy delay in the filing of the record.  The third respondent did not pursue the application to dismiss and I will accordingly consider the review application only.

.  .  .  .

[45] Social justice is central to the CCMA’s strategic goals.  The CCMA’s Siyaphambili “Moving Forward” Strategy 2010 – 2015, which sets out the road map within which the CCMA will execute its mandate over the period 2010 to 2015, has as one of its strategic objectives the delivery of excellent service rooted in social justice.  One of the key performance areas of this objective is the removal of social justice blockages in the CCMA and dispute resolution processes.

[46] In the context of the CCMA and bargaining councils social justice is achieved by treating all the users equally with dignity and respect and being accessible to the public in a language of choice and in a non-intimidating environment.

[47] In promoting social justice, commissioners should respect diversity, treat the employee and employer parties appearing before them equally and with respect and dignity, should make them feel welcome, comfortable and not intimidated, conduct themselves with integrity and impartiality, never appear irritated or impatient with a party and to assist the parties in the process where necessary, particularly where a party is unrepresented.  A commissioner should conduct him/herself in an even handed, objective, courteous and fair manner and should avoid the display of favouritism or bias by either his words or his conduct.

[48] In addition to promoting social justice, when exercising their powers and functions in terms of section 138(1) of the LRA, commissioners of the CCMA and bargaining councils are expected to exhibit certain values and ethics and are expected to conduct not only the arbitration proceedings but also themselves with a high level of integrity.

[49] In Kasipersad v CCMA and others, the Honourable Justice Pillay set out some of the attributes of a commissioner to be honesty, integrity, trust, fairness, impartiality, general reliability, patience, persistence, self-controlled, dignified, respectful, intelligent and sympathetic.

[50] A commissioner is also expected to uphold and promote the CCMA’s values as set out in its Vision and Mission Statement being integrity, diversity, transparency, excellence, accountability and respect.

[51] The CCMA’s Vision and Mission statement describes these values as follows:

‘Integrity: We are honest and ethical in everything that we do.  We deliver on our commitments.  We are accountable and responsible for our performance. 

Diversity: We are a team of highly qualified individuals that is representative, at all levels, of our country’s diversity.  Transparency: We work in a manner that is open and transparent, guided by our statutory obligations and commitment. 

Excellence: We are committed to excellence.  We continuously strive to deliver quality work.  We always seek to improve our processes, products and services to better serve the citizens of South Africa. 

Accountability: We constantly measure ourselves against our commitments and we hold ourselves responsible for our actions and the outcomes of our work.  We are committed to each other and all we do. 

Respect: We value differences in people and ideas and we treat others with fairness, dignity and respect.  We foster a culture of trust, respect, teamwork, communication, creativity, equal opportunity, and empowerment.’

[52] The purpose of the Code is to assist commissioners in maintaining the good repute of the CCMA and to provide guidance on matters of professional conduct and practice generally.

[53] The Code sets out general attributes expected of commissioners such as honesty, impartiality and due diligence.  In terms of the Code commissioners must conduct themselves in a manner that is fair to all parties and to conduct proceedings in a fair, diligent and even handed manner and to be patient and courteous to the parties and their witnesses.

[54] By conducting themselves and the arbitration proceedings in the manner set out above in accordance with the Code and the CCMA’s Vision and Mission Statement, commissioners will promote social justice and as ambassadors of the CCMA assist the CCMA in achieving its Vision and Mission Statement and strategic goals.

[55] Commissioners should conduct the proceedings and themselves bearing in mind at all times that their conduct is on record and could be scrutinized by this Court in exercising its supervisory role over the functions of the CCMA and bargaining councils should one of the parties allege in a review application that he/she has committed misconduct or a gross irregularity.