A worrying case of misconduct in South Africa

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Employers and employees rely on labor court commissioners to discern between appropriate and inappropriate conduct and remedy incorrect classification and the consequences of employee conduct, says Johan Botes, partner and responsible for employment and management. compensation at Baker McKenzie in Johannesburg.

If an employee has committed a fault, the commission is responsible for re-examining the facts and determining the appropriate sanction in deserving cases. Faith in the statutory dispute resolution system rests on the proper exercise of the judgment of the Commissioners on a daily basis.

Our legal system even tolerates the fact that a commissioner can sometimes be wrong. But what happens when the commissioner is the one who commits the misconduct?

This was the interesting and disturbing question posed to the labor court in the recent case of Glencore Operations SA (Pty) Ltd v CCMA and others (JR1963 / 19, issued June 28, 2021).

In this case, the employer implored the court to review and set aside an arbitration award that the company unfairly dismissed an employee and had to reinstate him. In addition, the company sought to review the conduct of another commissioner who became involved in the case.

While it is common to cite the commissioner of the tribunal who made the award or decision in a review proceeding, it is quite rare for other Board members to find themselves dragged to the tribunal on requests for review where they have not. not presided over a case.

The scene at the labor court was that the employee did not show up for arbitration on time. The President Commissioner then (correctly and legally) dismissed the case due to the employee’s absence.

While the employer and union representatives left the court, dismissal decision in hand, the dithering employee arrived for arbitration. Another commissioner, Commissioner N, heard the employee protest and then “ordered” the parties – including the presiding commissioner – to return to the scene.

For reasons unclear to the casual observer, the presiding commissioner then ignored his impeachment decision and proceeded to arbitration.

The reviewing court dealt with the legal intricacies of the tribunal’s lack of jurisdiction to decide the issue after the commissioner issued a decision dismissing the employee’s litigation. The judgment reflects various statements from higher courts on this issue.

The highlight for the employee seems to be that, at best, he could have referred the matter to adjudication, with the decision having the effect of striking the record off the docket or having it withdrawn.

The controversial issue was the conduct of Commissioner N, who ordered the parties to proceed to arbitration. Allowing persistent parties to interfere in the dispute undermines the integrity of the statutory dispute resolution process.

As in most organizations, the CCMA has various officials who exercise control over the presiding commissioners. We can accept that there is a level of quality control to limit the risk of a rogue commissioner going off-track.

But allowing a commissioner who casually overhears a discussion between the parties to step in and order another commissioner to reconsider his findings is misconduct.

Commissioners should be held in high esteem by users of labor court services. While there will always be winners and losers in dispute resolution, the CCMA’s function is undermined by commissioners who behave like a law.

Tribunal Commissioners are bound by the Code of Conduct for Commissioners. Interfering in an already determined dispute that was not before you (and in court) seems to me to be conduct inconsistent with the Code. Commissioners are required to “… act with honesty and conduct themselves in a manner that is fair to all CCMA users and the general public”.

Had Commissioner N, hearing the case, advised the employee to contact the CCMA, their union or legal representative for advice on this matter, the employer may not have benefited from such advice. but could hardly have screamed scandal.

We may have even understood whether the commissioner advised the employee to submit a new request for arbitration. But by ordering another commissioner to rehear the case in circumstances where the tribunal lacked jurisdiction, he clearly overstepped the bar.

The court ordered the director of the CCMA to investigate the conduct of commissioner N. On these facts, one could probably also wonder whether the chairman of the commission should be reprimanded for allowing his colleague to order him to rehear. the case.

Whether one or both of the Commissioners made a mistake, ensuring that officials empowered to resolve our labor disputes act above reproach is essential to our pursuit of fair labor practices, peace at work and stability at work in our jurisdiction.

  • By Johan Botes, Partner and Head of Employment and Compensation at Baker McKenzie in Johannesburg.

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