BY lvan lsraelstam, Chief Executive of Labour Law Management

Consulting

Arbitrator misconduct can and does occur in many different forms

including:

Bias

In the case of Best Boland Motors vs Dispute Resolution Centre &others (CLL Vol. 13 No. 5 page 47) the Labour Appeal Court found that theconduct of the arbitrator suggested bias because the arbitrator and theapplicant employee held private discussions.

Aggressive Interrogation

In County Fair Foods vs Theron NO & others (2001, 2 BLLR 134 LC) the court found the aggressive manner in which the arbitrator questionedwitnesses to be unacceptable and therefore set the arbitrator’s decisionaside.

Ignoring of Evidence

In the case of Sasko (Pty) Ltd vs Buthelezi & others (1997, 12 BLLR1639 LC) the arbitrator failed to take into account that the employee had refused an offer of promotion. The Labour Court found this to be a breachof the arbitrator’s duty.

Misconstruing Evidence

In the case of Crown Chickens (Pty) Ltd vs Kapp & others (2002, 6 BLLR493 LAC) the arbitrator found that the employee had not called a colleague
a “kaffer”. However, the Labour Appeal Court found that the arbitrator had, without good reason, rejected the evidence of two witnesses whose evidence indicated that the employee had called his colleague a “kaffer”.

The Court found this amounted to a gross irregularity.

It is difficult to persuade a judge to overturn an arbitration decision.

Parties should not apply to Court for a review without the benefit ofproper legal expertise.

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Author may be contacted on (011) 888-7944 or 0828522973 or on e-mail

address: labourlaw@absamail.co.za. Go to: www.labourlawadvice.co.za.

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