Conciliation – Arbitration [Con/Arb]: – ‘A Hybrid Process’

By Johann Scheepers – PREMIER FOODS (PTY) LTD (NELSPRUIT) v COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION and GLEN CORMACK N.O. and MAROPENG STEWARD LEKOKOTLA (case no: JR 2103 / 12) (8 November 2016), before Snyman, AJ.

“The LRA permits councils and the CCMA to arbitrate disputes immediately if conciliation fails. The process of ‘con-arb’ collapses the normal two-phase process of conciliation meeting, followed by arbitration on a later date. This expedited procedure has potential dangers. For one, the same commissioner must necessarily act as both conciliator and arbitrator, meaning that, when acting in the latter capacity, he or she may have been privy to compromising information received when acting in the former capacity. This may render the process subject to review.”

[See Dr John Grogan, ‘Labour Litigation and Dispute Resolution’ Juta, 2014 ed. at 158].

Background

This matter concerns an application by the applicant [the employer] to review and set aside an arbitration award by the second respondent, Commissioner G Cormack, [the commissioner] in terms of which the third respondent’s dismissal [the employee] by the applicant [the employer] was held to be substantively unfair; and the third respondent [the employee] was afforded the relief of reinstatement retrospective to date of dismissal. The application [the review] was brought in terms of Section 145 of the Labour Relations Act (‘the LRA’). 

The review was brought by the employer based on grounds of misconduct committed by the commissioner during the con/arb proceedings. As a consequence of the misconduct, the employer alleged that it was deprived of a fair hearing.

In this matter with con/arb proceedings, the issue of the employee’s dismissal was first conciliated. The parties made opening statements where after conciliation proceedings failed.

When the proceedings resumed, on record, the employer made an application for the recusal of the commissioner. This recusal application was founded on statements the commissioner had made to the applicant’s representative in the course of the settlement discussions in conciliation about the evidence in the case and the applicant’s prospects of success.

The employer contended that these statements made by the commissioner indicated that the commissioner had already made up his mind in the matter, against the employer. 

In the review application, the employer has contended that the commissioner had been inextricably involved in a discussion of the evidence the conciliation, and following that he told the employer that continuing with the arbitration would result in them losing.

It was clear from the transcript that the employer had barely started motivating its recusal application when the commissioner intervened, saying: ‘I’m going to interrupt you, I’m not going to recuse myself, I don’t believe you have any grounds to ask me to recuse myself…’   

The employer was thus not allowed by the commissioner to bring a recusal application, and it followed that the employee was never required to answer such.

In his arbitration award, the commissioner did not deal with the recusal application. The commissioner did make mention that he dealt with certain aspects of the case in the conciliation but had not formed an ‘opinion’ as to whether this was the crux of the charges.

The commissioner held that a recusal would lead to a postponement and delay in resolving the dispute, which would be prejudicial to the employee. However, the commissioner recorded that ‘the arbitration then continued by agreement’, as part of the reasoning why he did not recuse himself. 

The transcript of the proceedings showed that the employer never agreed to continue with the proceedings. The employer had just commenced with bringing the application for recusal when the commissioner ‘simply shut it down’.

The employee was not even called on to answer the submissions and claim any prejudice that may result to him if the recusal was upheld. The employer was in fact given no choice by the commissioner other than commencing the arbitration by calling its first witness.

The Labour Court Judgment

The Court first addressed the test for review where the issue in contention was misconduct on the part of the commissioner. For the purpose of this summary, it was deemed unnecessary to restate in detail the judgments considered and referred to by the Court.

Suffice it to refer briefly to some of the case law referred to in the judgment. In the judgment of Sidumo and Another v Rustenburg Platinum Mines Ltd and Others, (2007) 28 ILJ 2405 (CC), Navsa AJ held that in light of the constitutional requirement (in s 33 (1) of the Constitution) everyone has the right to administrative action that is lawful, reasonable and procedurally fair, and said that ‘the reasonableness standard should now suffuse s145 of the LRA’.

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