Conducting Arbitration Proceedings

Arbitration is not easy — not for the arbitrator or commissioner (who often faces considerable time pressures) or for the parties, who know that there is a lot at stake and the success or failure of their case depends on how well they present the evidence. But certain principles remain: the arbitrator must see to it that all the relevant issues are canvassed and that the matter is properly heard; that each party is given a fair opportunity to present its case and that he or she retains his or her objectivity and neutrality.

The way the arbitrator conducted the arbitration proceedings was the main point of contention in Vodacom Service Provider Company (Pty) Ltd v Phala & others (2007) 16 LC 1.11.6. The matter related to sexual harassment — some male employees claimed that a woman had sexually harassed them for more than six months. The employee concerned was charged, found guilty and she was dismissed. The CCMA commissioner found that dismissal was not an appropriate sanction, that the employer had failed to lead sufficient evidence to show that dismissal was an appropriate sanction and he ordered the employee’s reinstatement.

Clearly, said the Labour Court, sections 138(1) and (2) of the Labour Relations Act give the arbitrator or the commissioner considerable discretion as to how the arbitration should be conducted. The commissioner may conduct the arbitration in a manner he or she considers appropriate in order for him or her to decide the dispute fairly and quickly. The commissioner must, however, deal with the substantial merits of the dispute, but do so with the minimum of legal formalities.

A commissioner can choose to adopt either an adversarial approach or an inquisitorial approach. In the case of adversarial approach, the parties are in control of the process and the role of the arbitrator is more limited. It is up to the parties to decide what evidence is going to be presented and how this evidence will be led. The arbitrator or commissioner is more like an umpire — he or she must manage the process and ensure that the laws of evidence are complied with. The commissioner may intervene where irrelevant questions are asked, hearsay evidence is being led or where the parties are not dealing with the issues the need to deal with.

Things are different in the case of an inquisitorial approach: here the commissioner or the arbitrator is in control of the process and plays a much more active role in the process. It is the commissioner or arbitrator who calls witnesses and asks them questions to ascertain the truth. This approach remains the exception rather than the rule in South Africa. Despite his involvement in the process, said the Labour Court, the commissioner or arbitrator cannot simply ignore the well-established rules of natural justice and he or she must take considerable care not to create a suspicion of bias.

A commissioner must conduct the proceedings in a fair, consistent and even-handed manner. He or she cannot assist (or be seen to assist) one party to the detriment of the other. A commissioner may not put to witnesses his propositions, he/she should not interrupt the witnesses’ answers, challenge the consistency of a witness, indicate that he doubted a witness’s credibility or say how the evidence should be interpreted.

In this case the commissioner decided to adopt the adversarial approach, but instead of remaining an umpire, he began to play an active part in the proceedings. He questioned the employer’s witnesses, so much so, said the Court, that it essentially amounted to cross-examination. The commissioner also questioned a witness in a manner which was improper and inappropriate and which suggested that the witness had been told what to say.

The Labour Court did not hesitate to find that the commissioner had overstepped the boundaries of fair procedure in the conduct of the arbitration proceedings. He did not remain the umpire but became involved on the field as well. This led to a “reasonable apprehension” on the part of the employer that the commissioner was not impartial. This constituted a gross irregularity and the partied had not had a fair hearing before the commissioner. On this ground alone, said the Court, the arbitration award was to be reviewed and set aside. There were other grounds of review too, including the manner in which the commissioner dealt with the evidence and the fact that the commissioner had failed to deal with the issue of procedural fairness.

This Labour Court decision is essential reading for all commissioners and arbitrators. Remaining an impartial umpire is not always easy, but once an arbitrator or commissioner starts running after the ball, he or she may just lose sight of his/her real function.