S v Department of Education, Western Cape (CA10/15) [2016] ZALAC 24 ; [2016] JOL 36078 ; (2016) ILJ 2298 (13 June 2016) per Tlaletsi DJP (Waglay JP and Murphy AJA concurring)

The LAC allowed the appeal against the judgment of Steenkamp J in the Labour Court who had found that the award of the arbiter was not unreasonable despite adopting ‘an overly inquisitorial approach’ in the conduct of the arbitration.

The matter was referred back to the Education Labour Relations Council for hearing before another arbiter.

LAC summary

“Practice and Procedure – reasonable apprehension of bias – Commissioners are enjoined to conduct arbitration in a manner that they deem appropriate – they might adopt an adversarial or inquisitorial approach but must guard against an intervention that is likely to suggest bias or a perception of bias in favour of a particular party to the dispute. Commissioners must refrain from assisting a party to the detriment of the other, cross-examining witnesses by inter alia, challenging the consistency of a witness, expressing doubt about the credibility and reliability of a witness – in casu the record is replete with instances where commissioner’s intervention advances employer’s case to the detriment of the employee –  failure to object by a party or its legal representative cannot render an unfair process or conduct fair or acceptable – test for reasonable apprehension of bias not premised on whether the representative objected to the process.

Test an objective one which is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the commissioner has not brought an impartial mind to bear in the adjudication of the dispute.

Labour Court’s judgment set aside and award remitted to be heard de novo, if need be.”

Excerpts

[34] The difficulties pointed above are not isolated incidents that are drawn out of context. They are to be found throughout the entire transcript of the proceedings. In my view, the Labour Court was too conservative to conclude that she came close to overstepping the mark, but she did not. In my view, a case of overstepping the mark that is clearer than this one is rare to find. To contend that the arbitrator was trying to “smooth the pitch” because Mr Vorster was doing his first arbitration and appellant was represented by an attorney is in the circumstances of this case without merit.

  • Firstly, there was never an inquiry as to the background and qualifications of Mr Vorster.
  • Secondly, she never informed the parties about the role she would play to obtain their views.
  • Thirdly, the very Mr Vorster who never indicated that he wanted playing field to be levelled, was unimpressed by the conduct of the arbitrator.

The record does not even suggest that he was incapable of representing the respondent.

In any case, she overstepped the fine line between legitimate intervention and assistance, amounting to advancing one party’s case at the expense of the other. Although she intervened when the respondent’s representatives were also questioning the witnesses, her intervention had the result of benefitting the respondent.

To think that in the circumstances the arbitrator was trying to assist for the sake of fairness is not borne by the facts and is speculative.

[35] The Labour Court held that appellant’s attorney neither objected to the style with which the arbitrator conducted the arbitration nor did he ask for her recusal. Failure to object by a party or its legal representative cannot render an unfair process or conduct fair or acceptable.

The test for reasonable apprehension of bias is not premised on whether the representative objected to the process or not. It is an objective test which is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the commissioner has not brought an impartial mind to bear in the adjudication of the dispute.

In any case, it has been shown above that an attempt by the respondent’s representative to stop the arbitrator from her conduct failed to yield any positive results.

[36] In my view, the award must be reviewed and set aside because the scope, nature and effect of the arbitrator’s interventions and dominance were such that she failed to afford the parties a fair hearing. Her conduct gave rise to a reasonable apprehension of bias.