Bafokeng Rasimone Platinum Mine v CCMA & Others (JR1734/03) [2006] ZALC 38 (10 February 2006)

Principle:

Whereas there is a duty on arbitrators to provide guidance and assistance to lay litigants, the question of whether such duty arose and whether failure to carry it out is an irregularity rendering an award reviewable, is a matter to be decided on the circumstances of each case. Care should be taken not to straddle the fine line between legitimate intervention by an arbitrator and assistance amounting to advancing one party's case at the expense of the other.

Facts:

An employee was dismissed in abstentia on the basis of desertion. He challenged his dismissal and was subsequently advised to lodge an internal appeal. When this was unsuccessful, he declared a dispute with the CCMA. Conciliation failed and the dispute was referred to arbitration. The arbitrator found that the dismissal had been substantively unfair and ordered reinstatement with limited compensation.

The employer brought an application in the LC to review and set aside the award, on the basis that the arbitrator committed a gross irregularity in failing to advise the employer's representative to call additional witnesses, particularly in respect of the issues that the arbitrator himself raised in his questioning of a witness.

The employer cited a line of the so-called helping hand cases where it was laid down that where the parties to arbitration proceedings are represented by lay persons there rests a duty on the arbitrator to guide and assist them in matters of procedure and the evidentiary steps that need to be taken and that failure to do so is an irregularity rendering the award susceptible to review.

The LC was not persuaded that the arbitrator committed a reviewable irregularity and said that the facts of this case were distinguishable from the cases cited by the employer. The LC noted that the employer was a large corporation and it is expected to be able to equip its representatives with enough resources to enable them to conduct its arbitrations properly or to ensure that it is represented by people who are sufficiently competent to do so.

The LC stated that whereas there is a duty on arbitrators to provide guidance and assistance to lay litigants, the question of whether such duty arose and whether failure to carry it out is an irregularity rendering an award reviewable is a matter to be decided with reference to the particular circumstances of each case. Care should be taken not to straddle the fine line between legitimate intervention by an arbitrator and assistance amounting to advancing one party's case at the expense of the other. Otherwise we would be opening the flood gates allowing every lay representative who has bungled his/her case to seek its re-opening by shifting the blame to the arbitrator.

At the end of the day, the cardinal question is whether the merits of the dispute have been adequately dealt with and fairly so in compliance with the provisions of section 138 of the Labour Relations Act. That question can best be answered by considering the conduct of the arbitration proceedings as a whole rather than "knitpicking through every shrapnel of evidence that was considered or not considered".

Extract from the judgment:

(Musi,J)

[5]   The main ground of the applicant's attack on the award is to be found in the supplementary affidavit it filed after receipt of the record of the arbitration proceedings in terms of Rule 7A(8)(a) of the Rules of this Court and it was the focus of the heads of argument filed on behalf of the applicant as well as oral argument. It was contended that the arbitrator committed a gross irregularity in failing to advise the applicant's representative to call additional witnesses, particularly in respect of the following issues that the arbitrator himself raised in his questioning of Herbst...........................................

[6]   Mr. Myburgh, for the applicant, cited a line of the so-called helping hand cases where it was laid down that where the parties to arbitration proceedings are represented by lay persons there rests a duty on the arbitrator to guide and assist them in matters of procedure and the evidentiary steps that need to be taken and that failure to do so is an irregularity rendering the award susceptible to review.

...........................................

[9]   I am not persuaded that the failure to advise the applicant to call further witnesses in the instant case amounts to a reviewable irregularity. In this regard I am inclined to agree with Mr. Goldberg that the instant case is distinguishable from the cases cited by Mr. Myburgh..................................................

[10]   In DIMBAZA FOUNDRIES LTD v CCMA & OTHERS (1999) 20 ILJ 1763 (LC) Gon AJ remarked at 1779 par. 87 that a human resources manager who regularly represents his/her company in arbitration proceedings would normally be aware of the procedures and the logical steps to be taken in the process. However, in that case, unlike in the instant case, the human resources manager was appearing for the first time and clearly needed guidance. One must also bear in mind that, unlike the employee, the applicant was a large corporation and it is expected to be able to equip its representatives with enough resources to enable them to conduct its arbitrations properly or to ensure that it is represented by people who are sufficiently competent to do so. See the remarks made in SCHOLTZ v COMMISSIONER MASEKO N.O. & OTHERS (2000) 21 ILJ 1854 (LC) at par. 22.

[11]   A further aspect that distinguishes the instant case from the cases cited on behalf of the applicant, relates to the question of whether the merits of the dispute have been dealt with........................

.............................................

[17]   In conclusion, it needs to be stated that whereas there is a duty on arbitrators to provide guidance and assistance to lay litigants, the question of whether such duty arose and whether failure to carry it out is an irregularity rendering an award reviewable is a matter to be decided with reference to the particular circumstances of each case. Care should be taken not to straddle the fine line between legitimate intervention by an arbitrator and assistance amounting to advancing one party's case at the expense of the other. Otherwise we would be opening the flood gates allowing every layrepresentative who has bungled his/her case to seek its re-opening by shifting the blame to the arbitrator. At the end of the day, the cardinal question is whether the merits of the dispute have been adequately dealt with and fairly so in compliance with the provisions of section 138 of the Labour Relations Act. That question can best be answered by considering the conduct of the arbitration proceedings as a whole rather than "knitpicking through every shrapnel of evidence that was considered or not considered", as was stated in COIN SECURITY GROUP (PTY) LTD v MACHAGO (2000) 5 LLD 283 (LC).

[18]   I have come to the conclusion that the failure to advise the applicant to call additional witnesses does not, in the circumstances of this case, amount to a reviewable irregularity.