An employee of the South African Revenue Service (SARS), an investigator, contacted another person telephonically and allegedly offered him a bribe to “look the other way” when inspecting a container. The other person reported the call and inspected the container. After counterfeit goods were found, the employee was dismissed. During the arbitration proceedings at the CCMA, the commissioner failed to strike a balance between an inquisitorial and accusatorial approach. The Labour Court ruled that the commissioner had committed a gross irregularity and, therefore, ordered that the arbitration award be set aside. 

South African Revenue Service v Commission for Conciliation, Mediation and Arbitration and others [2023] 7 BLLR 692 (LC)

Case summary

The employee, Francois Allens, was employed by SARS as an investigator. He was dismissed for misconduct on charges of bribery, corruption and dishonesty.

SARS alleged that the employee had called David Hans and asked him to “look the other way” when inspecting a container, and if he ignored the contents in the container, he would be well taken care of. The employee acknowledged that he had called David Hans, but denied offering him a bribe in exchange for looking the other way. Mr Hans reported the phone call to his manager and was instructed to unpack the entire container. Undeclared goods, which included counterfeit goods, valued at over R10-million were found in the relevant container.

SARS brought an application before the Labour Court to review an arbitration award whereby the CCMA commissioner found that the dismissal of the employee was substantively unfair. The grounds for review were that the commissioner committed gross misconduct in relation to her duties and/or alternatively committed gross irregularities in the conduct of the arbitration proceedings.

The record is riddled with instances where the commissioner took over the presentation of the case by leading evidence and not recognising the role of the parties’ representatives. The Court found it unusually intrusive that the commissioner repeatedly warned the witness that a man’s life was at stake, and that he should carefully reconsider his version of the facts.

The Court held that “She regularly interfered in the appellant’s examination of the respondent’s witnesses; allowed the respondent’s representative to interject and interrupt the course of questioning by the appellant’s representative; expressed scepticism regarding certain evidence adduced or to be adduced by the appellant; prematurely expressed views about the appellant’s conduct about the incident; solicited hearsay and similar fact evidence relating to other learners who had been allegedly approached by the appellant; and appeared to be assisting the respondent’s representative to the detriment of the appellant.”

After the commissioner cross-examined SARS’s witness, she stated in her award that the witness was very unreliable. The commissioner’s interventions were made both before the witness was cross-examined and after he was re-examined.

Section 138(1) of the Labour Relations Act (LRA) provides that a commissioner may conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities.

The Court in casu referred to the matter of Satani v Department of Education, Western Cape and others (2016) 37 ILJ 2298 (LAC) where the Labour Appeal Court considered the role of the commissioner. The Court noted that although a commissioner may, in terms of Section 138(1), conduct arbitration proceedings in any manner he or she deems appropriate, it does not give the commissioner licence to become engaged in the proceedings to such an extent that it appears as if he or she is a representative of one of the parties. For a commissioner to descend into the arena and become an active participant in the conduct of the case for the sake of one of the parties was simply not fair play, and completely negated the imperative of conducting fair arbitration proceedings. In this respect, the Court held that the manner in which the commissioner conducted herself in the proceedings created the perception that she was firmly in favour of finding for the employee, and that it created a perception of bias.

The Court, therefore, held that the commissioner went further in her interventions than simply clarifying the evidence that was presented. She elicited evidence and sought that certain conclusions would be drawn through the manner in which she questioned Hans. She then relied on such conclusions in her final evaluation of the evidence in her award.

The Court held that the commissioner undertook the enquiry before her in an incorrect way, and her failure to strike a balance between informality and fairness amounted to a gross irregularity. The arbitration award was, therefore, set aside and the matter was remitted back to the CCMA to be heard before another commissioner.

Written by the Labour Guide