The “helping-hand principle” can be found in Clause 20 and 21 of the CCMA guidelines on misconduct arbitration.  The applicable sub-clauses can be summarised as follows:

 

Clause 20: “At the start of the arbitration, the arbitrator should welcome the parties and advise them of –

…

20.9) 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: “The extent to which the arbitrator deals with any of these issues should be determined by the experience of the parties, or their representatives, and their knowledge of CCMA procedures. If it is evident at a subsequent stage that a party or their representative does not understand the nature of proceedings and that this is prejudicing the presentation of its case, the arbitrator should 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 witness of the other party or fails to put its version to those witnesses during cross-examination;

21.3) changes its version of events or puts a new version during proceedings.”

 

The question of whether the principle still enjoys application in our law was asked and answered in the recent decision of Nkomati Joint Venture v CCMA and Others [2019]40 ILJ 819 LAC. The background to the case can be summarised as follows:

 

The employee was charged with four charges relating to misconduct. During an internal disciplinary hearing, the employee pleaded guilty to three of the four charges. The chairperson ultimately found the employee guilty of all four charges and recommended a sanction of summary dismissal based on the seriousness of the misconduct. After a failed appeal process, the employee referred a dispute to the CCMA.

 

At the arbitration process the employer, through their HR representative, the employer only lead evidence relating to the charge where the employee had pleaded not guilty and failed to deal with the merits of the other three charges, believing that he was not required to do so. Thereafter, the employee, for the first time, offered an exculpatory version of his conduct. The Commissioner ultimately found that the employer had failed to prove that the dismissal was fair and ordered reinstatement.

 

The matter was taken on review by the employer wherein the employer claimed that the arbitrator should have applied the “helping-hand principle”, stopped the arbitration proceeding and allowed the employer’s representative an opportunity to lead evidence on the three charges wherein the employee had previously pleaded not guilty. The Labour Court dismissed the application and concluded that the helping-hand principle no longer found application in our law. It relied on the decision of Sidumo v Rustenburg Mines Ltd and others [2007] BLLR 1097 (CC), where the court would be required to uphold a reasonable award even where the helping hand was not provided when it should have been.

 

The Labour Appeal Court disagreed with the Labour Court and held that where circumstances and procedural fairness so require, a commissioner had to interfere in accordance with the principle, and failure would invariably result in an unreasonable award. The failure would prevent a full ventilation of the dispute, as was the case in casu.

 

The award was set aside and referred back to the CCMA to be heard by a new commissioner, thereby confirming that the duty to assist the parties as set out in the guidelines supra.

 

In conclusion, the result is that should a party

 

  • fail to lead evidence of its version under oath or affirmation; or
  • fail to cross-examine the witness of the other party or fail to put its version to those witnesses during cross-examination; or
  • change its version of events or puts a new version during proceedings,

 

the arbitrator should halt proceedings, advise the party of the defect in their case presentation or right to re-open their case in rebuttal, and failure by the arbitrator to do so will amount to a reviewable irregularity.

 

Article by: Stephen Kirsten

Provincial Manager – Cape Town