Answer to a question from a reader

I believe a CCMA arbitrator was biased against me. What can I do?

The short answer

You do not have the right to appeal a decision of the arbitrator, but you can take the arbitrator to the Labour Court for misconduct.

The whole question

I was dismissed by a company without due process. The company sent a letter to notify me about the hearing to an incorrect address due to negligence in the human resources department. The company learnt about its mistake but at CCMA arbitration the company said it can only offer compensation not reinstatement.

The commissioner was very biased and I've already launched a formal complaint against him with the CCMA, but I am still waiting for response.

Please help me not to be deprived of my constitutional rights.

The long answer

Thanks for your email about your unhappiness with the CCMA arbitration.

A person does not have the right to appeal a decision of the arbitrator, which is final, but you can take the arbitrator to the Labour Court for misconduct. The court can set aside the ruling of the arbitrator if it agrees that the arbitrator behaved incorrectly. So it’s not the arbitrator’s decision that the court looks at, but the way the arbitrator behaved in reaching that decision.

According to Ivan Israelstam of the South African Labour Guide, arbitrator misconduct can include, among other things, “bias, aggressive interrogation of witnesses, improper analysis of evidence, ignoring of evidence, refusal to allow a party the right to question witnesses or bring evidence, failure to apply his/her mind, misconstruing of evidence, overstepping his/her authority and failure to consider statutory provisions.”

But he also warns that if the Labour Court judge doesn’t agree that the arbitrator behaved incorrectly, you may well have to pay the legal costs of the other side, which could be horribly expensive. So he says, get legal advice first.

Answered on Jan. 31, 2019, 9 a.m.

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