The Code of Conduct for CCMA commissioners requires a commissioner to disclose any interest or relationship that is likely to affect their impartiality. A commissioner is entrusted to resolve labour disputes fairly to all the parties. Should a commissioner fail to act fairly, it gives rise to bias, which is a ground on which you may request the commissioner to be recused. Recusal means that you object to having the Commissioner as the arbitrator in the matter.
During the Conciliation process, a commissioner is entrusted to assist the parties in resolving the dispute. In order for the commissioner to assist the parties, he or she may require them to discuss the merits of the matter in detail. It is important to remember that a commissioner at conciliation does not have control of the outcome, however, where a party to the dispute fears that if they have the same commissioner at arbitration that he/she may act unfairly i.e. bias, during the proceedings, section 136 (3) of the Labour Relations Act allows for any party to the dispute to object to the same commissioner, the objection should be filed with the CCMA seven days after the date on which the Certificate of non-resolution was issued. It often happens that it is not necessary to object as the CCMA normally rotates the commissioners. However, it is best to be safe to avoid a biased commissioner who does not give weight to the evidence presented.
When a matter is set down for arbitration in front of a new commissioner and the parties decide to revert to conciliation with the assistance of the arbitrating commissioner, normally the commissioner requests the parties not to disclose or discuss the merits of the matter, however, where the merits of the matter is discussed and it becomes apparent that the commissioner is biased in that he or she is not acting impartially, a party to the dispute may in terms for Rule 31(10) of the CCMA rules apply on record for the commissioner to recuse himself, where after the Commissioner must make a decision on whether or not to recuse himself/herself.
In the case of Premier Foods (Pty) Ltd (Nelspruit) v Commission for Conciliation, Mediation and Arbitration and Others (JR2103/12)  ZALCJHB 426; (2017) 38 ILJ 658 (LC) at arbitration, the applicant in this matter, requested the commissioner to recuse himself as during settlement discussions the commissioner made a negative statement with regards to the prospects of success of the applicant, the applicant stated that the statement made by the commissioner indicated that he had already made up his mind. The Commissioner refused to hear the application for recusal. The Court in this matter held that the commissioner acted irregularly by not deciding on the Application for recusal based on the set principles.
Requesting a commissioner to recuse himself simply because you do not like him is not sufficient grounds for recusal. The test for recusal is set out in President of the Republic of SA and Others v SA Rugby Football Union and Others  ZACC 9; 1999 (4) SA 147 (CC) at para 48, where the court held that:
“The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must consider the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.”
When an application for recusal is brought it must be brought based on a reasonable suspicion of biasness. A commissioner is entrusted to ensure that matters are heard impartially as to ensure that the right to a fair trial as stated in our constitution is upheld. A commissioner who strays from his position commits grave misconduct and needs to be brought to account for it.
Article by: Rushaan Lewis
Dispute Resolution Official – East London