The CCMA comes in for quite a bit of flack. Let’s face it, half of the parties in arbitration cases lose, and the CCMA and its Commissioners are the easiest, and closest targets. In our experience, however, you normally pretty much get the arbitration award you deserve. But not always. There are indeed occasions when arbitration awards are wrong. That’s not unique to CCMA Commissioners though. It is precisely for this reason that our legal system has a series of review and appeal processes, across all fields of law, not just employment dispute resolution channels.
To be fair to CCMA and Bargaining Council Commissioners, employer cases are often lost due to defects in how a disciplinary hearing was conducted by an employer. Training can go some way to reducing poorly applied internal disciplinary processes.
That said, CCMA can err in their judgments, and be found to have committed irregularities in their arbitration awards.
Such was the case in San Michele Home NPC v Mahlangu D. & others (Case number JR1692/19, in a recently published Labour Court judgment.
The background to this case was that on 9 January 2019, “singing and dancing” union members had confronted an employer Administrator “in his office and handed him a letter of grievances, and demanded that he should leave the premises. He was subsequently escorted out of the premises”. An unprotected strike the ensued, during which “employees who were not party to the strike were equally subjected to intimidation by the striking employees”.
The employer obtained a Labour Court interdict on an urgent basis, on 17 January 2019, in light of the striker’s conduct. Needless to say, as is so often the case, “the unprotected strike and unlawful conduct had persisted”.
“The employees were subsequently charged with and dismissed for intimidation, participating in an illegal removal of two employees (Administrator and Social Worker) from the premises, and insubordination. Thirty other employees who were members of NUPSAW were also dismissed for similar misconduct”.
At arbitration, the Commissioner held that the dismissal of the two employees dismissed for intimidation and the illegal removal of two employees, were substantively and procedurally unfair on grounds that (1) there was no evidence of intimidation, (2) the two employees allegedly evicted by the strikers had testified that they had “played along with the strikers in order to save themselves from potential if not actual harm, (3) the alleged offenders had shown no intention of participating in the unprotected strike, and (4) that the two dismissed employees had long service, and, in essence, acted out of fear of union member retribution if they did not act as they did.
The employer took the arbitration award on review to the Labour Court.
The judgment was scathing of the Commissioner’ arbitration award. For example, the judgment notes that “ .. the glaring evidence before the Commissioner was that indeed the employees had not only participated in the unprotected strike action, but were also positively identified as part of the employees who had also committed acts of misconduct”, continuing that “Further to these factors is that the employees were part of a mob that had unlawfully and in an intimidating and unconscionable manner, removed officials of the applicant (a home for the mentally handicapped) who were going about their primary duties”.
The judgment also noted that neither of the two dismissed employees had shown any form of contrition for their actions, or taken stock of the consequences thereof”.
Turning to the arbitration award’s remedy of the reinstatement of the two dismissed employees, the Labour Court Judge noted that “I fail to appreciate how the Commissioner could possibly have concluded that a reinstatement with no consequences was appropriate”.
The Judge was finished. He continued that “Having regard to the above and the overall approach of the Commissioner, it is apparent that he clearly made contradictory findings, and other than that, he had relied on speculation rather than the discernible facts that were before him … the Commissioner had misconceived the nature of the enquiry he was called upon to undertake, had completely ignored relevant evidence, had failed to properly apply his mind to material issues at hand, and had committed various other irregularities in the conduct of proceedings”.
The Court substituted the arbitration award of the Commissioner in holding that the dismissal of the two employees was substantively fair.