When impartiality is lost, fairness follows suit.

In South Africa’s labour dispute resolution framework, the Commission for Conciliation, Mediation and Arbitration (CCMA) and the various accredited Bargaining Councils function as quasi-judicial forums mandated to resolve workplace disputes. In both settings, Commissioners are legally required to act impartially and without favour or prejudice to either party. However, one may encounter a blurring of these boundaries, where those presiding over proceedings, under the guise of assisting the employee, cross the threshold of neutrality and begin to actively advocate for the referring party. This phenomenon, often overlooked, unchallenged and accepted, can usually undermine confidence in the dispute resolution system.

The authority of both the CCMA and Bargaining Councils derives from the Labour Relations Act 66 of 1995 (LRA), supported by the Basic Conditions of Employment Act 75 of 1997 (BCEA) and their respective procedural rules. Section 138 of the LRA empowers Commissioners to conduct proceedings in a manner they consider appropriate to resolve the dispute fairly and expeditiously, with less rigid legal formalities than a courtroom. This discretionary power is intended to promote access to justice, especially for unrepresented employees. However, it does not entitle Commissioners to assume the role of representative for one of the parties, most often the employee.

The Code of Conduct for Commissioners, which applies equally to Bargaining Councils accredited by the CCMA, further reinforces the obligation of impartiality. Paragraph 3 of the Code requires that those presiding over disputes must act independently and free from outside influence. Yet in practice, it is not uncommon to witness a presiding arbitrator leading questions for one party, suggesting legal defences, cross-examining the employer’s witnesses beyond clarification, or displaying visible alignment with the employee’s narrative. These are not minor procedural deviations; they constitute a breach of fairness and can amount to reviewable irregularities.

Our Courts have taken a clear stance on this issue. In Satani v Department of Education, Western Cape and others (2016) 37 ILJ 2298 (LAC), the Labour Appeal Court reaffirmed that Commissioners must carefully balance the duty to assist unrepresented parties by ensuring impartial adjudication. Mr. Satani, a teacher facing disciplinary action, successfully appealed his unfair labour practice arbitration on the grounds that the Commissioner had assumed an overtly inquisitorial role. The Court held that while arbitrators may probe and clarify evidence, they overstep their bounds when their interventions improperly favour one party and undermine fairness. Notably, the Court emphasised that the test is objective: whether a reasonable and informed observer would suspect bias sufficient to vitiate the hearing. In Satani, the Commissioner’s conduct, including questioning credibility and indicating disclosure strategies, and effectively steering the Respondent’s case, required the award to be set aside.

In NUMSA v Wainwright NO and Others (2015) 36 ILJ 2097 (LC), the Labour Court addressed a review application in which the Commissioner had taken an overly interventionist approach during arbitration. The Court held that although Commissioners are permitted to ask clarifying questions, they must refrain from descending into the arena and conducting the case on behalf of either party. In this matter, the Commissioner had gone so far as to undermine NUMSA’s argument by selectively engaging with specific evidence and continuously interrupting the NUMSA representative. The Court reaffirmed the principle that a Commissioner must remain neutral and that any conduct creating a perception of bias, regardless of intention, undermines the legitimacy of the process.

It is well recognised that many employees appearing in these forums are unfamiliar with legal process, evidentiary requirements, or the structure of proceedings. Commissioners are therefore entitled to clarify issues, ensure the parties understand the process, and elicit facts where necessary. However, there is a significant and measurable difference between guiding the process and commandeering it. Once the presiding officer begins suggesting lines of argument, defending the employee’s credibility, or entering into adversarial exchanges with the other party’s representative, the impartiality of the entire process is compromised.

From an employer’s perspective, the consequences of a partial Commissioner can be severe. Not only does it risk an unfavourable outcome, but it places the employer in a position where the hearing is no longer about resolving a dispute fairly; it becomes about surviving a rigged process. When faced with such conduct, employer representatives must not remain silent. It is essential to raise an objection on record, respectfully but firmly, at the moment the overreach occurs. This forms the basis of any potential review under section 145 of the LRA. Without an objection and without a transcript reflecting the conduct, any subsequent challenge will run the risk of failing for lack of a procedural foundation.

In conclusion, both the CCMA and the Bargaining Councils serve as critical pillars in resolving employment disputes in South Africa. Their effectiveness depends not just on accessible processes but on the trust of all parties in the fairness of those presiding. When Commissioners abandon their neutrality and favour one party, intentionally or otherwise, they damage not only the specific case at hand but the credibility of the forum itself. One must remain vigilant, challenge such conduct where necessary, and continue advocating for a dispute resolution system that values integrity as highly as accessibility.

Written by Nathan Campbell, Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)