While there can be a little doubt that the CCMA, its processes and procedures, even the quality of arbitration awards, have improved considerably over the past years, there are still some flawed arbitration awards that slip through the cracks of the CCMA’s own scrutiny. In one such case, the Labour Court expresses severe criticism of what a CCMA commissioner did (or, more accurately, what the commissioner did not do).

Regrettably, the commissioner’s logic (or, more accurately, the lack of it) permeates many of the awards that are subject to review proceedings in this court. Come commissioners appear wholly incapable of dealing with disputes of fact – their awards comprise an often detailed summary of the evidence, followed by an “analysis” that is little more than a truncated regurgitation of that summary accompanied by a few gratuitous remarks on the evidence, followed by a conclusion that bears no logical or legal relationship to what precedes it. What is missing from these awards (the award under review in these proceedings is one of them) are the essential ingredients of an assessment of the credibility of the witnesses, a consideration of the inherent probability or improbability of the version that is proffered by the witnesses, and an assessment of the probabilities of the irreconcilable versions before the commissioner. As Cele AJ (as he then was) observed in Lukhnaji Municipality v Nonxuba & others [2007] 2 BLLR 130 (LC), while the LRA requires a commissioner to conduct an arbitration hearing in a manner that the commissioner deems appropriate in order to determine the dispute fairly and quickly, this does not exempt the commissioner from properly resolving disputes of fact when they arise.


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