Helping Hand? The Role of Commissioners at the CCMA

Published in ‘Without Prejudice’, October 2005 Edition

Employers, both large and small are increasingly being summoned to the CCMA to answer claims of unfair dismissal by disgruntled ex-employees. The restriction on legal representation at the CCMA in cases of dismissals related to misconduct or incapacity, contained in Section 140 of the LRA, effectively means that with the exception of the large corporate entities who have dedicated Human Resource or Industrial Relation functions, many employers are relying upon middle managers with little or no arbitration experience, and who are wholly unfamiliar with legal principles and rules of evidence, to represent the employer at the CCMA. Parties may agree to legal representation or the Commissioner may exercise discretion to allow legal representation in certain cases, based upon the complexity of the dispute, the comparable ability of the parties or legal principles raised, however these instances are generally the exception rather than the rule.

The matter of Klaasen v CCMA and Others (2005) 14 LC 1.25.9, handed down by Murphy AJ, highlights the potentially expensive consequences of inexperienced parties appearing before the CCMA. The Applicant brought an application for review of an arbitration award handed down by the Second Respondent, a CCMA Commissioner, on the basis that he committed an irregularity by failing to properly caution the Applicant, Mr Klaasen, about the implications of him not giving evidence under oath. Whilst this particular matter relates to the Commissioner’s failure to assist, advise or warn the Employee Party, the principles involved apply equally to both Employers and Employees who appear without legal representation at the CCMA.

The facts of the dispute are briefly that the Applicant, Mr Klaasen, was employed as a Geologist by the Third Respondent, Alexkor. A dispute arose between himself and the CEO regarding his failure to produce a mining report, and an altercation took place in the CEO’s office, at which meeting the Applicant alleged he was summarily dismissed.

A disciplinary enquiry was scheduled, however the employee failed to participate therein, maintaining that the outcome was a foregone conclusion. The Applicant referred an unfair dismissal dispute to the CCMA. Conciliation was unsuccessful, and the matter proceeded to arbitration before the Second Respondent, at which the Third Respondent, Alexkor, called five witnesses and the Applicant, Mr Klaasen, called eight. He did not however, give evidence under oath, relying on the incorrect assumption that his cross-questioning of the Third Respondent’s witnesses along with his opening and closing arguments were sufficient for the purposes of placing his version before the Commission.

At the conclusion of the evidence of the Applicant’s last witness, the Second Respondent asked him whether he had any further witnesses, and whether he was going to testify or close his case. The Applicant answered that he would close his case, and the Commissioner gave him no warning whatsoever of the potential repercussions of him failing to put his version before the Commissioner, under oath.

The Commissioner found in his award that the Applicant’s dismissal had been fair, and it was clear from his award that he gave no credence to the Applicant’s version of events, as it had not been given under oath.

The Applicant submitted in his papers, that the failure of the Second Respondent to alert him to the consequences of failing to testify under oath had the effect of denying him a fair trial of the issues and amounted to misconduct in relation to his duties as an arbitrator or a gross irregularity in the conduct of the arbitration proceedings, making the award reviewable. He further submitted that he had never had any legal training and that such was obvious to the Commissioner, and averred that he would have testified under oath had he known that the presentation of his version was insufficient.

Murphy AJ made the following findings:

Commissioners acting under the auspices of the CCMA … are expected to act inquisitorially or investigatively. Section 138(1) of the LRA provides that a Commissioner may conduct the arbitration in a manner that he or she considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with a minimum of legal formalities, which includes momentarily and cautiously stepping into the arena to direct the proceedings in the interests of justice…The Commissioner could accordingly be expected to take charge by instructing a party to put a version under oath or risk the consequences of an adverse inference of his acceptance of uncontradicted testimony. The failure to give that warning in light of the Commissioner’s inquisitorial function and duties, in my assessment constitutes a reviewable irregularity.”

The Court held that on that basis the Applicant was denied a fair trial of the issues and that the award fell to be set aside on this ground alone. The matter was remitted back to the CCMA to be heard by a Senior Commissioner

From an employer’s perspective this case highlights the potentially serious implications of sending inexperienced or unqualified managers to the CCMA. Arbitration awards issued by the CCMA are binding on the parties, and can only be set aside by approaching the Labour Court for review, which is a costly and time-consuming exercise. Commissioner’s need to be alive to the fact that the majority of people who appear before them at arbitrations have no legal training or experience, and be prepared to effectively guide and assist parties in the interests of justice and equity. Arbitrations can be daunting experiences for trained legal practitioners, so it is incumbent upon employers to properly equip their CCMA representatives with the basic arbitration skills and knowledge necessary to effectively litigate at the CCMA.