WHEN COMMISSIONERS OVERSTEP: KNOW YOUR RIGHTS
Written by Jaco Parkin
You have prepared your file, your witnesses are ready, and the concilliation/ arbitration is under way. Then something shifts. The person who is supposed to be neutral starts pressing your witness harder than the other side’s, or seems to be building the employee’s case for them.
Whether your dispute is before the National Bargaining Council for the Hairdressing, Cosmetology, Beauty and Skincare Industry or the CCMA, that is the moment when what you do next can decide whether you are able to challenge the outcome later.
1. Where are disputes in our industry heard, and do the same rules apply?
Depending on the dispute, a matter may be heard by the National Bargaining Council for the Hairdressing, Cosmetology, Beauty and Skincare Industry or by the CCMA. Which forum has jurisdiction depends on the LRA, the Council’s registered scope and the applicable collective agreement, so confirm with the Council or your employers’ organisation if you are unsure.
For employers in our industry, the Bargaining Council should be the first point of reference where the establishment and dispute fall within the Council’s scope. The Council is accredited by the CCMA for conciliation and arbitration, including inquiry by an arbitrator, for the applicable accreditation period.
The important point is that a fair, impartial and even-handed process is required in both forums. The procedures and rules may, however, differ between the CCMA and the Bargaining Council.
The Bargaining Council’s Main Collective Agreement also points in the same way. Arbitrators appointed by the Council to hear compliance disputes have the powers of a commissioner under section 142 of the LRA, and section 138 applies to those arbitrations, subject to the wording of the current applicable agreement. This is dealt with in clause 46 of the Main Collective Agreement and should be checked against the current version before relying on it.
2. What is a commissioner supposed to do?
A commissioner facilitates, mediates and arbitrates workplace disputes. At conciliation, the commissioner tries to help the parties settle. At arbitration, the commissioner hears the evidence and issues a binding award. Section 138 of the Labour Relations Act 66 of 1995 (LRA) lets the commissioner run an arbitration in whatever manner is appropriate to resolve the dispute fairly and quickly. The commissioner must deal with the substantial merits of the dispute with minimum legal formality.
Commissioners also hold real powers, including, subject to the requirements of the LRA, the power to subpoena witnesses and documents, make certain orders where a party does not attend, and deal with contempt.
Where the matter is before the Bargaining Council, the employer should also check the Council’s current collective agreement and rules to confirm how those powers apply in that particular proceeding.
3. Is a commissioner allowed to ask questions and help an unrepresented employee?
Yes. Many employees, including many in our industry, appear without a representative, and commissioners may clarify issues, explain the process and elicit facts where necessary. The difference lies between guiding the process and taking it over.
The fact that a commissioner asks difficult questions does not, by itself, establish bias. The concern arises where the commissioner questions one party more aggressively, suggests how one party should present its case or helps that party repair gaps in its evidence.
4. Where is the line?
The Labour Appeal Court dealt with this in Satani v Department of Education, Western Cape and Others [2016] ZALAC 38; (2016) 37 ILJ 2298 (LAC). Section 138 gives a commissioner wide discretion, but it does not permit a commissioner to become so involved that he or she appears to be a representative of one party. A commissioner who “descends into the arena” undermines the requirement of a fair arbitration.
The test is objective: would a reasonable, informed observer suspect bias? Intention does not matter. Conduct that creates a perception of bias can undermine the process even if the commissioner meant well.
The Labour Court made the same point in NUMSA v Wainwright NO and Others [2015] ZALCJHB 48; (2015) 36 ILJ 2097 (LC), where a commissioner’s conduct during the arbitration was considered against the requirement of a fair and impartial hearing.
5. What does out-of-line conduct look like in practice?
Warning signs include:
Leading questions for one party, or suggesting legal defences to the employee.
Cross-examining the employer’s witnesses well beyond clarification.
Interrupting the employer’s representative repeatedly, or allowing the other side to interrupt.
Expressing views on the merits or on a witness’s credibility before all the evidence is in.
Displaying visible alignment with one party’s version.
Taking over the presentation of the case by leading evidence.
In South African Revenue Service v CCMA and Others [2023] ZALCCT 12; [2023] 7 BLLR 692 (LC), the Labour Court found the commissioner had regularly interfered in the employer’s examination of witnesses, expressed scepticism about its evidence and appeared to assist the employee’s representative. The Court also found she had warned a witness that a person’s life was at stake and urged him to reconsider his version.
The Court held that this was a gross irregularity and set the award aside. The matter went back to the CCMA to be heard before a different commissioner.
The case arose at the CCMA, but the principle is relevant to employers in the Hairdressing, Cosmetology, Beauty and Skincare Industry when assessing whether conduct during a Bargaining Council arbitration has gone beyond fair case management.
6. What rules govern a commissioner’s conduct?
The Code of Conduct for Commissioners is issued in terms of section 117(6) of the LRA. It covers impartiality, conflicts of interest and disclosure, competence, the conduct of hearings and the drafting of awards. It requires commissioners to act fairly, impartially and independently, and to conduct proceedings in an even-handed manner.
The Code is not a mere guideline. Under section 117(7), a commissioner can be removed from office for a material violation.
For an arbitration before the National Bargaining Council for the Hairdressing, Cosmetology, Beauty and Skincare Industry, the employer must also check the Council’s applicable collective agreement, rules and accreditation conditions. The CCMA Code should not automatically be treated as the direct source governing every Council arbitrator unless the applicable provisions confirm that it applies.
7. What if the commissioner has a conflict of interest?
Commissioners must disclose relationships and interests that could affect their impartiality. Two Labour Court cases illustrate this:
In KwaZulu Transport (Pty) Ltd v Mnguni and Others [2001] ZALC 57; (2001) 22 ILJ 1946 (LC), the commissioner had previous dealings with one of the parties and the issue of recusal was considered.
In Buckas v Ethekwini Municipality and Others (2003) 24 ILJ 1962 (LC), the commissioner had not disclosed private training work for both management and union representatives at the municipality. The Court found this to be misconduct and a gross irregularity warranting the proceedings being set aside.
If you learn of a connection between the commissioner and the other party, raise it as soon as you know. If the matter is before the Bargaining Council, also follow the Council’s applicable procedure for raising a recusal request.
8. What should we do in the room when it happens?
Object on the record at the moment it happens. Employer representatives must not stay silent. The objection should be respectful but firm. It gives the commissioner an opportunity to correct the problem and creates a record for any later complaint or review under section 145 of the LRA.
In practice:
Stay calm and courteous. Antagonising the commissioner rarely helps.
State the objection clearly, for example: “Commissioner, we place on record our concern that the questioning of our witness goes beyond clarification.”
Ask for the objection and the commissioner’s response to be noted in the record.
Make sure the proceedings are being recorded, and arrange to obtain the transcript or recording afterwards.
Keep your own notes of the time and nature of each incident.
Consider asking for recusal where the concern is bias or an undisclosed interest. The commissioner’s ruling on that request also becomes part of the record.
A failure to object does not automatically decide whether a later review will succeed. However, raising the concern promptly may assist by giving the commissioner an opportunity to correct the problem and by creating a clearer record of what happened.
9. What can we do after an unfavourable award?
You can apply to the Labour Court to review the award under section 145 of the LRA where that section applies to the proceeding. The grounds relevant here are misconduct by the commissioner in relation to his or her duties, and gross irregularity in the conduct of the proceedings. Other grounds include exceeding the commissioner’s powers or an award improperly obtained. In the SARS matter, those were the grounds pleaded and upheld.
A review must generally be brought within six weeks of the award being served. Section 145 contains different provisions for certain disputes, so the employer must confirm the applicable time limit immediately. Do not wait for the outcome of a complaint to the Bargaining Council before checking the review deadline.
A review is not an appeal. The Court does not simply rehear the facts or decide whether it would have preferred a different version. It considers whether a recognised review ground exists and whether the conduct or defect affected the fairness or outcome of the arbitration.
Also, a successful review does not usually hand you a win. In SARS, the result was a fresh hearing before another commissioner.
10. Can we simply complain about the commissioner?
At the CCMA, an employer can raise a serious conduct concern through the CCMA’s applicable complaint or management process.
If the commissioner was appointed by the National Bargaining Council for the Hairdressing, Cosmetology, Beauty and Skincare Industry, the sensible first step is to raise the concern in writing with the Council itself. Confirm the correct contact person and process with the Council, or ask your employers’ organisation to guide you.
Either way, keep a complaint separate from your review strategy, because the review deadline keeps running.
11. The commissioner told us (or the employee) we had a weak case at conciliation. Is that misconduct?
Usually not. In Cindi v Commission for Conciliation, Mediation and Arbitration and Others [2015] ZALCJHB 236; (2015) 36 ILJ 3080 (LC), the commissioner told the employee at conciliation that she had no prospects of success and should settle. She signed a settlement agreement and later tried to have it reviewed and set aside.
The Labour Court refused. It held that a settlement agreement is not an award or ruling; a conciliating commissioner merely facilitates and has no decision-making power, and the decision to settle rests solely with the parties.
That case arose at the CCMA, but the same logic that the parties and not the facilitator decide is likely to apply to conciliation at the Bargaining Council, subject to the Council’s applicable rules.
Two lessons follow for employers. First, robust settlement talk at conciliation is not usually treated as misconduct. Second, once you have signed a settlement agreement, it is very hard to undo, so take advice before you sign, especially if you feel pressured.
12. Some practical prevention tips
Send a representative, whether internal or through the employers' organisation. A represented employer is less likely to see the commissioner “helping” the other side.
Prepare your bundle and witnesses properly. A well-run case leaves fewer gaps for the commissioner to fill.
Find out how the National Bargaining Council for the Hairdressing, Cosmetology, Beauty and Skincare Industry runs its hearings, including recording arrangements, before the hearing starts. Ask the Council if you are unsure.
Confirm that the dispute falls within the Council’s scope and check the applicable collective agreement before the hearing.
Know the relevant Council provisions and section 138. It is easier to object confidently when you can name the principle.
Document everything, from your objections to your notes on the commissioner’s conduct.
This article is general information for employers in the Hairdressing, Cosmetology, Beauty and Skincare Industry. Time limits and procedures matter in review proceedings. Consult with your EOHCB representative before acting on a specific matter to understand the risks of each case before it gets placed in front of a commissioner.
