Bias and Race

Allegations of bias usually arise because a chairperson is seen as having a vested interest in the outcome of a case or if she or he has been involved, in some way or another, in the investigation of the disciplinary charges and events. While it is inevitable that a manager, chairing a disciplinary hearing, will have some “institutional bias” (in favour of the employer), this does not mean that she or he will not be able to decide on guilt and sanction objectively and with the necessary neutral state of mind.

Arbitrators may also, of course, be biased and a party appearing before an arbitrator may argue that he or she will not receive a fair hearing by the arbitrator and then request the arbitrator to recuse herself or himself. This happened, for example, in Marley FloorWorx and MEWUSA (2005) 14 MEIBC 1.22.1 where an application for recusal was made because of a perceived bias on the part of the bargaining council arbitrator against both the union and the employee personally. The arbitrator did not yield to this pressure, stating that an arbitrator should not give in to the unfounded and ill-informed fears of bias expressed by parties who either want a presiding officer of their choice to hear the matter, or if the party concerned is trying to bully the arbitrator into accepting a point of view or argument. This does happen, unfortunately — that an arbitrator is seen as biased because he or she made a ruling (often a ruling of a procedural nature) against the employee or the employee’s representative.

The facts of the Labour Court decision in Cell C (Pty) Ltd v Finger & others (2006) 15 LC 1.22.1 go a step further: the employee (self-described as a black man) objected to the arbitrator on the basis of race — the arbitrator was Indian. The employer’s two representatives were also Indian. The black employee took the view that the situation was “racially imbalanced” against him. The arbitrator recused himself, and the employer (Cell C) went to the Labour Court in order to review the arbitrator’s decision to recuse himself — essentially the employer challenged the arbitrator’s decision to recuse himself and wanted him to do what he was supposed to do.

The arbitrator, in recusing himself, stated that the affront to his dignity could lead to the seeds of bias being planted. After recusing himself, while in fact no longer having to do so, the arbitrator made a punitive cost order against the employee’s labour attorney.

As could be expected, the Labour Court did not approve of the employee’s actions: an objection to his or her race can never be a reason for a presiding officer to recuse himself or herself. An objection by a party, on such grounds, is not only reprehensible, but it would make litigation in a multi-racial country such as ours impossible. It should not be tolerated, added the Court for good measure.

Did this mean that the arbitrator’s decision to recuse himself was reviewable? Usually, of course, it works the other way around — an arbitrator’s refusal to recuse himself may be subject to review. Even so, it would not be a good idea to force an arbitrator who has recused himself from a matter, to continue with that same matter. Especially in a case such as this, where the arbitrator was provoked into recusing himself. The Labour Court did not set aside the arbitrator’s decision to recuse himself.

But the Court was scathing in respect of the conduct of the employee and his representative. At the time the Court heard the matter, the matter had been postponed by the CCMA and it was to be heard by another commissioner (African). Bizarre, though: the employee placed on record that he would object to even that arbitrator. Hopefully, the Court said, the African commissioner who was scheduled to hear the matter, was made of stronger stuff, and would deal with the employee’s objection in a decisive manner.

‘Till next week, and please don’t provoke your arbitrators. The job is tough enough as it is! And don’t bully them either — you may just find that they bully you right back!