In terms of section 138 of the Labour Relations Act, commissioners may conduct arbitrations in a manner that the CCMA Commissioner considers appropriate to determine the dispute fairly and quickly as well as deal with the substantial merits of the dispute with the minimum legal formality.
In the Impala Platinum v Jansen and Others (2017) 4 BLLR 328 (LAC) review in the Labour Court (LC), the issue was raised about an allegation of bias by the CCMA Commissioner:
• The LAC held that a Commissioner has relative carte blanche to conduct the proceedings with minimal legal formalities in an inquisitorial or investigative mode. He or she is entitled to solicit information himself/herself to come to a finding that is fair.
• In this matter, the Commissioner adopted a mixture of adversarial and inquisitional approaches. While he did ask a number of questions, a holistic assessment of the transcript shows that he was even-handed and questioned most of the witnesses.
• The LAC found that if the CCMA Commissioner had addressed more questions to the employee this is not an indication of bias. The Court saw no reason to find that there was a reasonable apprehension of bias.
• The appeal was upheld with costs.
This confirms the position that CCMA commissioners have a wide range of discretion in dealing with these disputes and to prove bias will not be easy for a party. However it is critical that CCMA commissioners conduct themselves in an appropriate manner to both parties.