Having reached the peak of the Covid19 pandemic, the need to limit oneself to possible risks of exposure has been heightened. Therefore, being required to attend labour disputes at venues like the CCMA may be disconcerting for many, and rightfully so. Numerous CCMA offices have been forced to close temporarily as a result of employees being tested positive for the Covid19 virus. Despite facing these challenges, in striking a balance between its obligation to dispense justice efficiently and observing health and safety protocol, the show must go on, and the CCMA remains as active as always. Due to the unique circumstances which have emerged due to the pandemic, the manner in which various processes are conducted was considered and adjusted to fit within the risk prevention strategy as prescribed by the Disaster Management Regulations.
In a recent directive published by the CCMA, the conducting of arbitration processes, at a venue other than the CCMA or via video conferencing facilities was suggested. Although the CCMA already had the discretion to conduct its processes in this manner, it was only done so as a result of an application brought by the parties or in terms of the commissioner’s directive. In recent developments, the parties have been given far more freedom to decide the format and venue where processes are conducted. Should parties consent thereto, the CCMA is obliged to conduct the arbitration at a venue other than the CCMA or via a web-based platform.
While these alternatives are often viable options and considering the current climate, encouraged, in some cases, it may be impractical to conduct the process on a web-based platform, for example where the accessibility to technology in rural areas is not adequate.
In Simmers v Campbell Scientific Africa, the Labour Court dealt with the use of virtual platforms in arbitration hearings. The applicant was called to attend a disciplinary hearing by his employer, CSA, on allegations of sexual harassment, unprofessional conduct and bringing the name and image of the company into disrepute. He was dismissed and subsequently referred an unfair dismissal dispute to the CCMA.
The victim of the alleged sexual assault and the company’s main witness in the arbitration proceedings lived abroad at the time and did not attend the hearing. Instead, she testified by way of Skype at the hearing and at the arbitration proceedings. The witness was cross-examined by way of the Skype Link. The applicant argued that the complainant had the benefit of delays, pauses, broken connections and time to compose herself, to think of answers and that his case has been prejudiced due to the fact that the company’s main witness was allowed to testify in this manner. He argued further that he did not have the opportunity to confront the person who had been making these allegations against him face to face and that the arbitrator did not observe her demeanour, which is an important aspect of arbitrations relating to sexual harassment.
Judge Steenkamp held that while it was not an ideal situation to allow a witness to testify via Skype or a long-distance telephone link, it was justifiable in terms of Labour Relations Act, No. 66 of 1995. The testimony of the witness by way of Skype did not prevent the applicant from having a fair hearing and was not deemed to be a reviewable irregularity. Due to the fact that this precedent has been set, the allowing of evidence to be led via Skype or any other electronic platform may lead to fewer postponements and costs being saved in the form of transporting and accommodating witnesses.
Although the courts have endorsed the conducting of arbitration processes via web-based platforms, parties need to be cognisant of the advantages and disadvantages of such processes, for example, witnesses may make use of notes while testifying, they may also simply disconnect if the questioning becomes uncomfortable. Whatever the case may be, an experienced representative will be able to advise and strategise the best manner in which the process should be conducted. Therefore, it is advisable for employers to consult with a trained professional in the field of labour law before granting its consent to have a case heard in this manner. Whether a virtual hearing will be beneficial or prejudicial to a case, needs to be determined based on the circumstances at hand.