Abstract:
The South Africa labour law, particularly the Labour Relations Act, 66 of
1995 (LRA) provides for alternative labour dispute resolution that is quick,
cost effective and accessible. By doing so, the LRA provides for
establishment of the Commission for Conciliation, Mediation and
Arbitration (CCMA) to serve as alternative dispute resolution body. Despite
the benefits (quick, cost effective and accessible) of the CCMA, there are
rising concerns about the impartial and biased conduct of the CCMA
commissioners during arbitration. Consequently, this study critique the
laws regulating arbitration as opposed to mediation in the workplace in
South Africa. CCMA commissioners preside over labour disputes and
make impartial decisions based on the facts and evidence presented to
them. The LRA and CCMA Code of Practice require CCMA
commissioners to be unbiased, fair, and objective when making decisions.
There are however in contrary rising concerns that the CCMA
commissioners are biased and partial during arbitration proceedings. The
study found that the CCMA Code and LRA do not provide adequate
provisions to ensure that CCMA Commissioners are always unbiased and
impartial during arbitration. This was substantiated through comparative
analysis between Canada and South African alternative dispute resolution
laws. In South Africa, parties to arbitration often do not personally choose
a CCMA commissioner to preside over their matter as that decision is
often made by CCMA officials. In contrary, the Canada extensively
encourage parties to mutually choose personally an officer to preside over
their matter. This then makes the arbitration in Canada to be often
impartial and unbiased in Canada as compared to South Africa. The study
recommended that the South African law can learn from Canada to
enhance the extent of unbiased and impartiality during CCMA arbitration.
