Conundrum and nightmare in the politics of the laws regulating arbitration as opposed to mediation in the workplace in South Africa

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.