The code of good practice that regulates the conducting of misconduct dismissal arbitrations increases the obligation on commissioners to conduct themselves properly when arbitrating such matters. These guidelines, backed up by the law pave the way for employers and employees to take the arbitrator’s conduct on review to the Labour Court if they are able to prove that the arbitrator, in making his/her award, has materially broken a rule thereby committing ‘misconduct’. This is different to an appeal because an appeal is lodged, not against the arbitrator’s conduct, but rather against his/her decision.
Arbitrator ‘misconduct’ can and does occur in many different forms including, amongst others, bias, interrogation of witnesses, failure to keep records, ignoring of evidence, refusal to allow a party the right to question witnesses or bring evidence, failure to apply his/her mind, misconstruing of evidence, overstepping his/her authority and failure to consider statutory provisions.
In the case of Prince vs CCMA and others (2005, 2 BLLR 159) the employee was fired for stealing money collected from the car park pay station. The arbitrator found that the employee had been involved in the theft and upheld the dismissal. The employee then applied to the Labour Court for a Review. The Labour Court found that the evidence led by the employer was inadequate as proof of the employee’s guilt. There had been other people who could have taken the money.
The Court found that the CCMA commissioner’s award finding had not been based on the facts. As it is the duty of commissioners to take proper account of evidence led the Court found the CCMA award to be both unsustainable and unjustified. The employer was required to reinstate the employee with 44 months’ back pay plus interest. The employer was also ordered to pay the employee’s legal costs.
In De Nysschen vs General Public Service Bargaining Council & others (2007, 5 BLLR 461) the employee had been temporarily acting in a post for some time. When an advertisement was distributed for purposes of filling the upgraded post permanently the acting incumbent applied for it. As she was not successful she lodged a dispute at the bargaining council. However, the arbitrator found that the employer had not been unfair in appointing someone else to the position. The employee then lodged a review application at the Labour Court which found that:
- The employer was unable to show that the employee who was appointed to the post was the most suitable candidate.
- The interviewing panel had recommended the aggrieved employee, yet she had not been appointed.
- The criteria used in deciding against the employee were not the criteria that were advertised with the job advertisement.
- The successful applicant had been a black male. However, the employer did not claim that it had used affirmative action criteria to fill the post.
- The criteria used by the employer to fill the post were therefore incorrectly accepted by the arbitrator whose award was therefore overturned.
The employer was ordered to appoint the employee into the disputed post with retrospective effect.
In an unreported case (Number JR 1606/04) the employee was reprimanded by a manager for failing to phone in while absent from work. The employee left his employment, went to the CCMA and claimed that he had been dismissed. At the CCMA the employer denied that the employee had been dismissed and brought substantial evidence to show that the employee had been instructed to return to work.
During the arbitration hearing the commissioner frequently cross examined the employer’s witnesses and made remarks deriding the evidence of those witnesses. The arbitration award, which was in favour of the employee, failed to take into account the evidence brought by the employer. The employer’s manager later saw the employee and the arbitrator shaking hands.
The employer took the arbitrator on review to the Labour Court claiming that the award failed to take the facts into account and that the arbitrator was biased. The Court found in favour of the employer and found the dismissal to be both procedurally and substantively fair.
Parties therefore need not give up if they truly believe that, on the proven facts, they were short changed due to irregular conduct on the arbitrator’s behalf.
However, even if the aggrieved party has evidence of arbitrator ‘misconduct’ it is difficult to persuade a court judge that this evidence amounts to solid proof meriting the overturning of the award. In the unreported case described immediately above the employer used proper labour law expertise in order to prove its case. Failure to use such expertise would most likely to have resulted in the employer losing the case.
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