CCMA commissioners and bargaining council arbitrators are expected to be impartial when hearing arbitrations. Parties have the right to be treated consistently and evenly, and if a commissioner treats one party differently, there may be justifiable grounds for concluding that the commissioners had forsaken his impartial role and climbed into the arena to support one of the parties.
The Labour Relations Act empowers commissioners to take a much more interventionists, inquisitorial approach in hearing arbitrations. If a commissioner takes an inquisitorial approach, that approach must be applied in respect of both parties. If the commissioner takes a hands-off approach in respect of the employer’s version and evidence, while subjecting the employee to aggressive cross-examination, there may well be grounds to conclude that the commissioner had committed misconduct in the proceedings and the award may well be reviewed and set aside.
For further information on CCMA Rules or any labour related matters, you can contact Bernard Reisner: