Many employees who appear before the CCMA or Bargaining Councils have little experience in labour disputes and have limited understanding of the legal principles and rules of evidence that are relevant.
The question of whether Commissioners are entitled and/or obliged to assist such parties in presenting their cases or whether intervention in such circumstances would be regarded as demonstrating bias, or creating a perception of bias in favour of one party over the other was addressed by the Labour Court in Lyttleton Dolomite (Pty) Ltd v NUM obo Amos Lekgau and others (Case no: JR288/18 11 August 2020).
In this case, the “helping hand principle” and the nature and extent of the duties of CCMA Commissioners to assist parties to conduct their cases in arbitration was considered.
The employee was a NUM shop steward and branch chairperson. At the disciplinary hearing, he was found guilty of misconduct and dismissed for misleading employees with inaccurate information around the payment of incentive bonuses.
His dismissal was referred to the CCMA. At the arbitration, the inexperienced company representative called none of the witnesses who had given evidence at the disciplinary hearing. The only witnesses who were called gave hearsay evidence about what they had been told about the case. The Commissioner stated in her award that the company’s evidence produced at the arbitration to prove the charges of misconduct against the employee was essentially hearsay and should be excluded in terms of the Law of Evidence Amendment Act (LEAA). In terms thereof, hearsay evidence is generally inadmissible unless there is an agreement to admit it or it is in the interests of justice to do so.
Having excluded the hearsay evidence, the Commissioner found that the company had not proved the misconduct charges against the employee and found his dismissal to have been substantively unfair and ordered that he be retrospectively reinstated with backpay.
The award was taken on review by the company. The basis of the review application to the Labour Court was the Commissioner’s failure to warn its inexperienced representative of the hearsay nature of the evidence, which constituted a reviewable gross irregularity. The union opposed this, arguing that had the Commissioner done so it would have amounted to unduly assisting one of the parties, which would have created a perception of bias.
On review, the Labour Court held that clauses 20 and 21 of the CCMA Guidelines are the source of the so-called ‘helping hand’ principle. The provisions require an arbitrator at the commencement of the arbitration proceedings to inform the parties of (inter alia):
i. the fact that the proceedings will be recorded;
ii. any potential conflicts of interest;
iii. the rules of proceedings;
iv. the role and powers of the arbitrator;
v. the procedure in terms of which documents are introduced into proceedings; and
vi. the requirement that if evidence of a witness is disputed, the other party should, at the appropriate stage, question the witness in that regard and put its version to the witness so that the witness has an opportunity to respond.
Clause 21, in particular, requires the arbitrator, if it becomes evident during the proceedings that a party or its representative does not understand the nature of the proceedings and that this is prejudicing the presentation of their case, to draw this to the attention of the party. Circumstances in which it may be appropriate for the arbitrator to do this, include if a party:
21.1. fails to lead evidence of its version under oath or affirmation;
21.2. fails to cross-examine the witnesses of the other party or fails to put its version to those witnesses during cross-examination; and
21.3. changes its version of events or puts a new version during proceedings.
The Labour Court referred to the Labour Appeal Court judgment in Nkomati Joint Venture v CCMA & Others (JA 155/2017)  ZALAC 53; (2019) 40 ILJ 819 (LAC) (12 December 2018) that ruled that an arbitrator commits a gross irregularity when under a duty to ‘lend a helping hand’ to parties in accordance with the CCMA Guidelines, and then fails to do so.
The Court also noted the judgment in Exxaro Coal (Pty) Ltd v Chipana and Others (JA161/17)  ZALAC 52 (27 June 2019) that highlighted the importance of the timing of a commissioner’s ruling on the admissibility of evidence. The judgment confirmed that a commissioner should timeously make any ruling on the admission of hearsay evidence, in order to give parties the opportunity to deal with this. It should not be made for the first time at the end of the arbitration, or in the closing argument, or in the award.
In Lyttleton Dolomite (Pty) Ltd v NUM obo Amos Lekgau and others (Case no: JR288/18 11 August 2020), the Labour Court confirmed that a commissioner has a duty in terms of the CCMA Guidelines to ‘lend a helping hand’ during the proceedings. The Commissioner has a duty to explain to the parties the significance of the provisions of section 3 of the LEAA, or of the alternative, fair standard and procedure that should be adopted by a Commissioner to consider the admission of the evidence and to timeously rule on the admission of the hearsay evidence. Commissioners cannot therefore only deal with the aspect of hearsay in the award as such conduct would be regarded as unfair because parties would not be given an opportunity to rectify their action or know what onus is expected of them.
Commissioners are therefore obliged to assist parties who are not experienced in labour disputes in presenting their cases and intervention in such circumstances would not be regarded as demonstrating bias, nor create a perception of bias in favour of one party over the other.
Article by: Jodi-Leigh Erasmus
Dispute Resolution Official – Port Elizabeth