CODE OF CONDUCT - COMMISSIONERS
This code is developed in terms of Section 117 of the Labour Relations Act No 66 of 1995.
PURPOSE1. The purpose of this code is to:
1.1. Assist in maintaining the good repute of the conciliation, mediation and arbitration processes and in particular the office of the CCMA.
1.2. Provide guidance to all commissioners on matters of professional conduct and practice generally.
GENERAL ATTRIBUTES OF COMMISSIONERS2. In order for conciliation, mediation and arbitration processes to be seen to be fair and just and gain the confidence of the commissioners shall:
2.1. Act with honesty, impartially, due diligence and independent of any outside pressure in the discharge of their statutory functions.
2.2. Conduct themselves in a manner that is fair to all parties and shall not be swayed by fear of criticism or by self interest.
2.3. Not solicit appointment for themselves. This shall not however preclude commissioners from indicating a willingness to serve in any capacity.
2.4. Accept appointments only if they believe that they are available to conduct the process promptly and are competent to undertake the assignment.
2.5. Avoid entering into any financial, business or social relationship, which is likely to affect their impartiality, or which might reasonably create a perception of partiality or bias.
2.6. Not influence CCMA officials or employees by improper means, including gifts or other inducements.
CONFLICT OF INTEREST AND DISCLOSURE3. Commissioners should disclose any interest or relationship that is likely to affect their impartiality or which might create a perception of partiality. The duty to disclose rests on the commissioners.
4. Commissioners appointed to intervene in any matter should, before accepting disclose directly to the CCMA or through their accredited agents:
4.1. Any direct financial or personal interest in the matter.
4.2. Any existing or past financial, business, professional, family or social relationship which is likely to affect impartiality or may toa reasonable perception of partiality or bias
4.3. If the circumstances that's requiring disclosure are unknown to the commissioners prior to accepting appointments, disclosure must be made when the commissioners know circumstances, the disclosure in this regard could in arbitration proceedings, include witnesses who may have relationship with the commissioner.
4.4. After appropriate disclosure commissioners may serve if both parties so desire but should withdraw if they believe that a conflict of interest exists irrespective of the view expressed by the parties.
4.5. In the event where there is no consensus on whether conciliators and arbitrators should withdraw or not, commissioners should not withdraw if the following circumstances exist:
4.5.1. If the terms of reference provide for a procedure to be followed for determining challenges to the conciliators and arbitrators, then those procedures should be followed.
4.5.2. If commissioners, after carefully considering the matter, determine that the reason for the challenge is not substantial and that they can nevertheless act impartially and fairly, and that the withdrawal would cause unfair delay or would be contrary to the ends of justice.
HEARING CONDUCT5. Commissioners should conduct proceedings fairly, diligently and in an even-handed manner.
6. Commissioners should have no casual contact with any of the parties or their representatives while handling a matter without the presence or consent of the other.
7. Commissioners should be patient and courteous to the parties and their representatives or witnesses and should encourage similar behaviour by all participants in the proceedings.
8. Arbitrators should respect agreements by the parties for the use of mechanical recording.
9. In determining whether to conduct an ex parte hearing, an arbitrator must consider the relevant legal, contractual and other pertinent circumstances.
10. A commissioner must be satisfied before proceeding ex parte that a party refusing or failing to attend the hearing has been given adequate notice of time, place and purpose of the hearing.
11. In an event of more than one commissioner acting either as a conciliator, mediator or arbitrator, the commissioner should each other a full opportunity to participate in the proceedings.
12. Commissioners should not delegate their duty to intervene in any matter to any other person without prior notice to and the consent of the CCMA.
POST HEARING13. Commissioners should not disclose a prospective award to either party prior to its simultaneous issuance to both parties.
14. Commissioners' awards should be definite, certain and as concise as possible.
15. No clarification or interpretation of an award is permissible without the consent of both parties.
16. Under agreements, which permit or require clarification or interpretation of an award, arbitrators shall afford each party an opportunity to be heard.
CONFIDENTIALITY17. Information disclosed to commissioners in confidence by a party during the course of conciliation, should be kept by commissioners in the strictest confidence and should not be disclosed to the other party or to third parties unless authority is obtained for such disclosure.
JURISDICTION18. Commissioners must observe faithfully both the limitation and inclusions of the jurisdiction conferred by an agreement or by statute under which they serve.
19. A direct settlement by the parties of some or all issues in a case, at any stage of the proceedings, must be accepted by commissioners as relieving him or her of further jurisdiction in respect of such issues.
RELIANCE ON OTHER ARBITRATORS' AWARDS AND INDEPENDENT RESEARCH20. Commissioners issuing advisory or binding awards may have regard to other arbitrator's awards, decided cases or independent research but must assume full and unimpaired responsibility in each matter for the decision reached.
AVOIDANCE OF DELAYS21. Commissioners have the duty to plan their work schedules in a manner that ensures that commitments to the CCMA are fulfilled timorously.
22. Commissioners should cooperate with the parties and the CCMA to avoid delays.
23. On completion of a hearing, commissioners shall submit an award within 14 days.
FEES AND EXPENSES24. Part-time Commissioners acting as such should be governed by the fee structure of the CCMA and should not enter into any arrangement with the parties regarding fees.
25. Commissioners must maintain adequate records to support charges for services and expenses and must account timorously to the CCMA.
COMPETENCE27. Commissioners should decline appointment, withdraw or request technical assistance when they decide that a matter is beyond their competence.
28. Commissioners acting as conciliators should understand the issues which form part of the dispute before endeavouring to assist the parties with the settlement of that dispute. In this regard, commissioners should spend time at the beginning of the proceedings to make sure that they understand the positions, the needs and expectations of the parties.
BASIS OF CONCILIATION PROCEEDINGS29. Commissioners acting as conciliators should determine at the commencement of a matter whether the proceedings will take place on a "without prejudice" basis and should secure the agreement of the parties in this regard.