Conduct of commissioners

Commissioners are appointed by the Governing Body of the CCMA to facilitate, mediate, arbitrate, prevent, and settle industrial disputes. Each provincial office has a team of full-time commissioners supported by an additional complement of part-time commissioners. Convening Commissioners (CSC’s) have been appointed in each province to monitor the professional standard of the CCMA in the allocation of cases to commissioners.

 

The Code of Good Conduct for Commissioners was introduced in terms of section 117 of the Labour Relations Act 66 of 1995 (hereinafter referred to as the “LRA”). The Code is directed at providing commissioners with guidance ‘on matters of professional conduct and practice generally’ and ensuring that the CCMA’s good reputation is maintained.  Commissioners are obliged to display complete neutrality and impartiality when complying with their duties and responsibilities.

 

The purpose of the Code is to provide a framework for commissioners in the pursuit of conduct that is beyond reproach and to ensure that the conduct of commissioners prior to, during and after all CCMA processes is seen to be fair, impartial and independent. The Code applies to all commissioners and serves as a guideline of the CCMA’s approach to the conduct required or responses expected from commissioners in relation to the issues covered in the Code. This is however not merely a guideline, and in terms of section 117 (7), a commissioner may be removed from office for a material violation of the Code.

 

The Code makes provisions for guidelines pertaining to the general conduct of commissioners and specifically stipulate what constitutes prohibited conduct, conflict of interest and disclosures, outside interest, responsibilities of commissioners, competence, and jurisdiction of commissioners. It furthermore guides commissioners on their availability, recording equipment, access to electronic communication and property of the CCMA.

 

The conduct of commissioners during a hearing is also stipulated in the Code. It provides guidelines on how to proceed with conciliation and mediation, how to conduct conciliations when acting as arbitrators, procedures in the avoidance of delays and compliance with time limits and standard operating procedures. Lastly, the Code makes provisions for the conduct of commissioners post the hearing proceedings, specifically in the drafting and issuing of awards.

 

In Kwazulu Transport (Pty) Ltd v Mnguni & others (2001) 22 ILJ 1946 the Labour Court held that a commissioner (in arbitration proceedings) should have disclosed the fact that he had litigated against one of the parties before him and offered to recuse himself. In addition, he had been a representative of one of the parties and failed to disclose that in the courts view that was at best negligent, and at worst a deliberate misrepresentation. In any event, the commissioner was found to have committed misconduct by not making the relevant disclosures.

 

In Buckas v Ethekwini Municipality & others (2003) 24 ILJ 1962 (LC) the commissioner did not disclose that he had done private work for one of the parties- he had done training courses for both management and union representatives in the municipality. The court found that the commissioners’ non-disclosure amounted to misconduct and a gross irregularity warranting setting the proceedings aside.

 

Powers of commissioners at dispute resolution

Section 133 of the LRA stipulates that the CCMA must appoint a commissioner to attempt to resolve a dispute through conciliation. If conciliation fails, a certificate of non-resolution must be issued after a 30-day period. Section 138 of the LRA further gives a commissioner the power to conduct the arbitration in a manner that he/she considers appropriate to determine the dispute fairly and quickly but must deal with the substantial merits of the dispute with the minimum legal formalities.

 

In the interest of resolving disputes, the LRA has provided commissioners with a variety of powers. These include the right to:

  • Subpoena witnesses and documents
  • On authorisation, enter and inspect any premises on which any relevant document or other object can be found
  • On authorisation, remove and inspect any relevant document or other objects
  • Take from persons on the premises any statement relevant to the matter
  • Make a finding that a person is in contempt of the CCMA

 

During arbitration, commissioners can attempt to settle the dispute between the parties, hear evidence, and issue arbitration awards. Commissioners may award employees reinstatement or compensation in line with the LRA. Applications lodged at the CCMA can be dismissed, and commissioners can make default awards against employers who fail to attend arbitration hearings.

 

Commissioners have the power to make rulings on the jurisdiction of the CCMA, the right of parties to be represented and applications for variation or rescission of arbitration awards.

 

The powers of CCMA commissioners are regulated by the provisions of the LRA. Commissioners must act in accordance with the Code and cannot perform functions that fall outside the power as granted to them by the LRA.

 

Article by: Aletta Eksteen

Dispute Resolution Official – Cape Town