As you would expect, an arbitrator is required to adjudicate an arbitration hearing fairly and impartially.
The CCMA’s Guidelines on Misconduct Arbitration (most recently amended in a 17 March 2015 Government Gazette) state in section 16 that “An arbitrator must conduct the arbitration impartially. This means that an arbitrator must act in a manner that is fair to both parties and not engage in conduct that is biased or that might reasonably give rise to a party forming a perception that the arbitrator is biased”.
What’s more, the Code of Conduct for Commissioners of the CCMA, whichalso applies to Bargaining Council Commissioners, stipulates that Commissioners should disclose any interest or relationship that is likely to affect their impartiality or which might create a perception of impartiality.
This is where the term ‘recuse’ enters the discussion. If an arbitrator, or one of the parties at an arbitration hearing, believes that the arbitrator is unsuitable to arbitrate the case, due to the fact that they may not be able to apply their minds impartially, s/he must recuse him or herself. It is also quite possible that one of the parties asks the arbitrator to recuse themselves.
Most definitions of the term ‘recuse’ define it to mean that the arbitrator must excuse or disqualify themselves as the arbitrator in the arbitration hearing, to be replaced by another arbitrator.
When dealing with cases in which an arbitrator should recuse themselves without being requested to do so by either of the parties, I can refer to an example close to home.
On occasion, I conduct training and conferences together with Bargaining Council and CCMA Commissioners. If I were to represent a party at an arbitration hearing, as I frequently do, and an arbitrator has been appointed to my case with whom I have worked in the past, the Commissioner would, as they always rightfully do, declare their prior relationship with me, and recuse themselves, to be replaced by another Commissioner with whom I have no prior professional relationship.
Another example of such circumstances was dealt with in the Labour Appeal Court case of Daniel v National Bargaining Council for the Chemical Industry & 1 other (LAC JA58/12), in which the court chastised the arbitrator for not having recused herself from the arbitration, when she knew full well that she ought to have done, due to the fact that she was a 50% shareholder, co-owner and a director of a company which was a preferred service provider to the employer. Furthermore, the arbitrator’s consulting practice shared offices with the service provider.
The Judge noted that “the arbitrator’s interest (in the employer’s service provider) cannot be said to be small or trivial, but even if it was, it still required disclosure.
In the matter of Mutual & Federal Insurance Company Limited vs CCMA and Other 1997 12 BLLR [1610] LC, theLabour Court noted that actual bias was not necessary to be proven, an application of bias can be brought where a reasonable suspicion, or a perception of biasexisted.
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