A disturbing case of misconduct in South Africa

Employers and staff depend on employment tribunal commissioners to discern between acceptable and inappropriate conduct and treatment the wrong classification and penalties hooked up to worker conduct, says Johan Botes, companion and head of the Employment & Compensation at Baker McKenzie in Johannesburg.

If an worker dedicated misconduct, the fee is tasked with contemplating the details afresh and figuring out the suitable sanction in deserving instances. Faith in the statutory dispute decision system hinges on the sound train of judgment by commissioners on daily basis.

Our authorized system even tolerates the truth that a commissioner could often get it unsuitable. But what occurs when the commissioner is the one committing the misconduct?

This was the fascinating and disturbing question posed to the labour courtroom in the current matter of Glencore Operations SA (Pty) Ltd v CCMA & others (JR1963/19, delivered 28 June 2021).

In this case, the employer implored the courtroom to review and put aside an arbitration award that held that the company unfairly dismissed an worker and that it should reinstate him. Furthermore, the business sought to review the conduct of one other commissioner who grew to become concerned in the matter.

Whilst it is not uncommon to quote the tribunal commissioner who issued the award or ruling in review proceedings, it’s fairly unusual for different commissioners to search out themselves dragged earlier than the courtroom in review functions the place they didn’t preside over a matter.

The scene that performed out on the employment tribunal was that the worker did not arrive for the arbitration on the scheduled time. The presiding commissioner then (appropriately and lawfully) dismissed the matter primarily based on the worker’s absence.

As the employer and commerce union representatives exited the tribunal, dismissal ruling in hand, the procrastinating worker arrived for the arbitration. Another commissioner, Commissioner N, overheard the worker remonstrating after which “ordered” the events – together with the presiding commissioner – again into the venue.

For unclear causes to the casual observer, the presiding commissioner then disregarded his dismissal ruling and proceeded with the arbitration.

The reviewing courtroom handled the authorized technicalities regarding the tribunal’s lack of jurisdiction to find out the matter after the commissioner had issued a ruling dismissing the worker’s dispute. The judgment displays on numerous increased courtroom utterances on this concern.

The high-water mark for the worker seems to be that, at greatest, he might have referred the matter to arbitration once more, with the ruling having the impact akin to putting the case off the roll or having it withdrawn.

The vexed concern was the conduct of Commissioner N, who directed the events to proceed with the arbitration. Allowing events not ceased with the dispute to intervene undermines the integrity of the statutory dispute decision course of.

As discovered in most organisations, the CCMA has numerous functionaries who train oversight over the presiding commissioners. One can settle for that there needs to be a stage of high quality management to restrict the chance of a rogue commissioner going off-piste.

But to permit a commissioner casually overhearing a dialogue between events to intervene and direct one other commissioner to rethink his findings smacks of misconduct.

Commissioners needs to be held in excessive regard by customers of the employment tribunal’s companies. Whilst there’ll all the time be winners and losers in dispute decision, the CCMA’s perform is undermined by commissioners who conduct themselves as a regulation unto themselves.

Tribunal commissioners are sure by the statutory Code of Conduct for Commissioners. Interfering in an already decided dispute that was not earlier than you strikes me (and the courtroom) as conduct inconsistent with the Code. Commissioners are required “… to act with honesty and conduct in a manner that is fair to all CCMA users and the public at large.”

Had Commissioner N, overhearing the matter, suggested the worker to contact the CCMA, his commerce union or authorized consultant to hunt recommendation on the matter, the employer could not have loved such recommendation however would hardly have been in a position to cry foul.

One could have even understood if the commissioner suggested the worker to convey a brand new application for arbitration. But in directing one other commissioner to rehear the matter beneath circumstances the place the tribunal lacked jurisdiction, he clearly overstepped the mark.

The courtroom ordered the Director of the CCMA to research the conduct of Commissioner N. On these details, one might in all probability additionally question whether or not the presiding commissioner needs to be reprimanded for permitting his colleague to direct him into rehearing the matter.

Whether one or each commissioners erred, guaranteeing that the functionaries empowered to resolve our labour disputes act past reproach is vital to our quest for honest labour practices, labour peace and workplace stability in our jurisdiction.

  • By Johan Botes, companion and head of the Employment & Compensation at Baker McKenzie in Johannesburg.

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