Either party can take a CCMA arbitrator’s conduct on review to the Labour Court if they are able to prove that the arbitrator, in making his/her award, has materially broken a rule. This is different to an appeal because an appeal is lodged, not against the arbitrator’s conduct, but rather against his/her decision.
Arbitrator ‘misconduct’ can and does occur in many different forms including, amongst others, bias, interrogation of witnesses, failure to keep records, ignoring of evidence, refusal to allow a party the right to question witnesses or bring evidence, failure to apply his/her mind, misconstruing of evidence, overstepping his/her authority and failure to consider statutory provisions.
In an unreported case (Number JR 1606/04) the employee was reprimanded by a manager for failing to phone in while absent from work. The reprimanded employee then left his employment on his own accord, went to the CCMA and falsely claimed that he had been dismissed. During the CCMA arbitration hearing the employer denied that the employee had been dismissed and brought substantial evidence to show that the employee had been instructed to return to work.
During the arbitration hearing the commissioner frequently cross examined the employer’s witnesses and made remarks deriding the evidence of those witnesses. The arbitration award, which was in favour of the employee, failed to take into account the evidence brought by the employer. The employer’s manager later saw the employee and the arbitrator shaking hands.
The employer took the arbitrator on review to the Labour Court claiming that the award failed to take the facts into account and that the arbitrator was biased. The Court found in favour of the employer, struck down the arbitration award and found the dismissal to be both procedurally and substantively fair.
Parties therefore need not give up if they truly believe that, on the proven facts, they were short changed due to irregular conduct on the arbitrator’s behalf.
However, even if the aggrieved party has evidence of arbitrator ‘misconduct’ it is difficult to persuade a court judge that this evidence amounts to solid proof meriting the overturning of the award.
In the unreported case described immediately above the employer used proper labour law expertise in order to prove its case. Failure to use such expertise would most likely to have resulted in the employer losing the case.