In terms of section 138 of the Labour Relations Act no 66 of 1995, commissioners must “conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly but must deal with the substantial merits of the dispute with the minimum of legal formalities.”


Arbitration hearings are unique when compared to civil and criminal cases.  Due to the number of cases that the CCMA and Bargaining Councils deal with on an annual basis, the legislature streamlined the arbitration process to ensure that employees and employers are dispensed with labour justice efficiently.  This is not a license to allow Commissioners of the CCMA and Bargaining Councils to deal with cases without having regard to the law.


The recent decision of Exxaro Coal (Pty) Ltd & another v Chipana & others (2019) 40 ILJ 2485 (LAC) gives clear guidance to Commissioners who are faced with evidentiary considerations during arbitrations.  In this matter, the employee (Chipana) who worked in the human resources department was accused of taking bribes from job seekers.  During the disciplinary hearing, the witnesses who paid such bribes were allegedly intimidated by Chipana.  Nevertheless, after considering the body of evidence against the employee, he was subsequently dismissed.


The CCMA Commissioner who was tasked with the arbitration, allowed both parties to lead evidence and close their respective cases.  In the award, the Commissioner concluded that the employer relied on hearsay evidence without the consent of the employee.  Importantly the Commissioner did not allow the parties to make submissions relating to the admissibility of hearsay evidence.  The Commissioner thereafter found that the employees’ dismissal was substantively and procedurally unfair awarding reinstatement with full backpay.


On appeal to the Labour Appeal Court, after an unsuccessful review at the Labour Court, the employer challenged the findings of the CCMA Commissioner for rejecting hearsay evidence.  The Labour Appeal Court found, much to the embarrassment of the CCMA Commissioner, that the Commissioner was not aware of the laws relating to hearsay evidence.  This constituted an error in law.  The Labour Appeal Court remitted the matter to the CCMA to be heard afresh before a different commissioner.


The important lesson to be learned from the Exxaro case is that although arbitrations before the CCMA and Bargaining Councils are intended to be dealt with speedily, this does not mean that commissioners have carte blanche in dealing with matters and must ensure that the parties are afforded a fair hearing.  The CCMA or Bargaining Council process must not replicate a full civil or criminal trial. However, it must comply with the basic rules of evidence and its admissibility thereof.


Article by: Shakti Jainarain

Senior Dispute Resolution Official – Durban