Employers, both large and small are increasingly
being summoned to the CCMA to answer claims of
unfair dismissal by disgruntled ex-employees.
The restriction on legal representation at the
CCMA in cases of dismissals related to misconduct
or incapacity, contained in Section 140 of the
LRA, effectively means that with the exception
of the large corporate entities who have dedicated
Human Resource or Industrial Relation functions,
many employers are relying upon middle managers
with little or no arbitration experience, and
who are wholly unfamiliar with legal principles
and rules of evidence, to represent the employer
at the CCMA. Parties may agree to legal representation
or the Commissioner may exercise discretion to
allow legal representation in certain cases, based
upon the complexity of the dispute, the comparable
ability of the parties or legal principles raised,
however these instances are generally the exception
rather than the rule.
The matter of Klaasen v CCMA and Others (2005)
14 LC 1.25.9, handed down by Murphy AJ, highlights
the potentially expensive consequences of inexperienced
parties appearing before the CCMA. The Applicant
brought an application for review of an arbitration
award handed down by the Second Respondent, a
CCMA Commissioner, on the basis that he committed
an irregularity by failing to properly caution
the Applicant, Mr Klaasen, about the implications
of him not giving evidence under oath. Whilst
this particular matter relates to the Commissioner’s
failure to assist, advise or warn the Employee
Party, the principles involved apply equally to
both Employers and Employees who appear without
legal representation at the CCMA.
The facts of the dispute are briefly that the
Applicant, Mr Klaasen, was employed as a Geologist
by the Third Respondent, Alexkor. A dispute arose
between himself and the CEO regarding his failure
to produce a mining report, and an altercation
took place in the CEO’s office, at which
meeting the Applicant alleged he was summarily
dismissed.
A disciplinary enquiry was scheduled, however
the employee failed to participate therein, maintaining
that the outcome was a foregone conclusion. The
Applicant referred an unfair dismissal dispute
to the CCMA. Conciliation was unsuccessful, and
the matter proceeded to arbitration before the
Second Respondent, at which the Third Respondent,
Alexkor, called five witnesses and the Applicant,
Mr Klaasen, called eight. He did not however,
give evidence under oath, relying on the incorrect
assumption that his cross-questioning of the Third
Respondent’s witnesses along with his opening
and closing arguments were sufficient for the
purposes of placing his version before the Commission.
At the conclusion of the evidence of the Applicant’s
last witness, the Second Respondent asked him
whether he had any further witnesses, and whether
he was going to testify or close his case. The
Applicant answered that he would close his case,
and the Commissioner gave him no warning whatsoever
of the potential repercussions of him failing
to put his version before the Commissioner, under
oath. The Commissioner found in his award that
the Applicant’s dismissal had been fair,
and it was clear from his award that he gave no
credence to the Applicant’s version of events,
as it had not been given under oath.
The Applicant submitted in his papers, that the
failure of the Second Respondent to alert him
to the consequences of failing to testify under
oath had the effect of denying him a fair trial
of the issues and amounted to misconduct in relation
to his duties as an arbitrator or a gross irregularity
in the conduct of the arbitration proceedings,
making the award reviewable. He further submitted
that he had never had any legal training and that
such was obvious to the Commissioner, and averred
that he would have testified under oath had he
known that the presentation of his version was
insufficient.
Murphy AJ made the following findings:
Commissioners acting under the auspices of the
CCMA … are expected to act inquisitorially
or investigatively. Section 138(1) of the LRA
provides that a Commissioner may conduct the arbitration
in a manner that he or she considers appropriate
in order to determine the dispute fairly and quickly,
but must deal with the substantial merits of the
dispute with a minimum of legal formalities, which
includes momentarily and cautiously stepping into
the arena to direct the proceedings in the interests
of justice…The Commissioner could accordingly
be expected to take charge by instructing a party
to put a version under oath or risk the consequences
of an adverse inference of his acceptance of uncontradicted
testimony. The failure to give that warning in
light of the Commissioner’s inquisitorial
function and duties, in my assessment constitutes
a reviewable irregularity."
The Court held that on that basis the Applicant
was denied a fair trial of the issues and that
the award fell to be set aside on this ground
alone. The matter was remitted back to the CCMA
to be heard by a Senior Commissioner.
From an employer’s perspective this case
highlights the potentially serious implications
of sending inexperienced or unqualified managers
to the CCMA. Arbitration awards issued by the
CCMA are binding on the parties, and can only
be set aside by approaching the Labour Court for
review, which is a costly and time-consuming exercise.
Commissioner’s need to be alive to the fact
that the majority of people who appear before
them at arbitrations have no legal training or
experience, and be prepared to effectively guide
and assist parties in the interests of justice
and equity. Arbitrations can be daunting experiences
for trained legal practitioners, so it is incumbent
upon employers to properly equip their CCMA representatives
with the basic arbitration skills and knowledge
necessary to effectively litigate at the CCMA.
