What is the code of conduct of the commissioner in CCMA.

Applicant seeks help with the role of the commissioner is in conciliation (Conduct of a Commissioner). She said she has been to conciliation (CCMA or Bargaining Councils) where the commissioner was very harsh to an extent that made me very uncomfortable through out the whole process. Applicant’s alleged unfair constructive dismissal has been made by her employer. She felt the the commissioner has insulted her intellect and alleged that the commissioner conducted the process in an unfair and biased manner.

Many employees who appear before the CCMA or Bargaining Councils have little experience in labour disputes and have limited understanding of the legal principles and rules of evidence that are relevant. The processes of the CCMA relating to unfair dismissal disputes are generally conducted as follows:

• Conciliation (Conciliation is the first step at CCMA or Bargaining Council proceedings where a matter is referred in terms of the Labour Relations Act, the Employment Equity Act, the Basic Conditions Act, the Skills Development Act, or the National Minimum Wage Act.)
• Conduct of con-arb Meeting (Here, the Applicant and Respondent must attempt to reach consensus on aspects)
• Arbitration( here commissioner gives both parties an opportunity to fully state their cases thereafter makes a decision on the issue in dispute)

A commissioner has a duty in terms of the CCMA Guidelines to ‘lend a helping hand’ during the proceedings. The Commissioner has a duty to explain to the parties the significance of the provisions of section 3 of the LEAA (Law of Evidence Amendment Act), or of the alternative, fair standard and procedure that should be adopted by a Commissioner to consider the admission of the evidence and to timeously rule on the admission of the hearsay evidence.

It is expected that commissioners cannot deal with the aspect of hearsay in the award as such conduct would be regarded as unfair because parties would not be given an opportunity to rectify their action or know what onus is expected of them. They are therefore obliged to assist parties who are not experienced in labour disputes in presenting their cases and intervention in such circumstances would not be regarded as demonstrating bias, nor create a perception of bias in favour of one party over the other.

The fact that many CCMA awards have been successfully reviewed at Labour Court places a question mark on the quality of some CCMA awards. This is possibly one reason for the CCMA’s decision to implement its CCMA guidelines on code of conduct of commissioners developed in terms of Section 117 of the Labour Relations Act No 66 of 1995