Article 70/2022

Helping hand principle: clauses 20 and 21 of the CCMA guidelines on misconduct

What is the criteria to be utilised to determine whether a commissioner is under a duty to comply with the so-called helping hand doctrine or principle?

To what extent is a commissioner obliged, in terms of the so-called helping hand doctrine or principle, to extend such assistance to a party and what are the consequences of his or her failure in this regard?

What are the consequences of a commissioner’s failure to warn a party that hearsay evidence requires corroboration and negative inferences may be drawn from same?

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In Lyttleton Dolomite (Pty) Ltd v NUM obo Lekgau and Others (2021) 31 SALLR 156 (LC), the labour court recently adopted the following approach:

  • clauses 20 and 21 of the CCMA Guidelines are the source of the so-called ‘helping hand’ principle. The provisions require an arbitrator at the commencement of arbitration proceedings to inform the parties, inter alia, of:
    • the fact that the proceedings will be recorded
    • any potential conflicts of interest
    • the rules of proceedings
    • the role and powers of the arbitrator
    • the procedure in terms of which documents are introduced into proceedings and
    • the requirement that if evidence of a witness is disputed, the other party should, at the appropriate stage, question the witness in that regard and put its version to the witness so that the witness has an opportunity to respond (clause 20 of the CCMA Guidelines)
  • clause 21 of the CCMA Guidelines is of particular relevance. It reads:

‘The extent to which the arbitrator deals with any of these issues should be determined by the experience of the parties, or their representatives, and their knowledge of CCMA procedures. If it is evident at a subsequent stage that a party or its representative does not understand the nature of proceedings and that this is prejudicing the presentation of its case, the arbitrator should draw this to the attention of the party. Circumstances in which it may be appropriate for the arbitrator to do this include if a party:

21.1 fails to lead evidence of its version under oath or affirmation;

21.2 fails to cross-examine the witnesses of the other party or fails to put its version to those witnesses during cross-examination; and

21.3 changes its version of events or puts a new version during proceedings.’

  • in the case of Nkomati Joint Venture v Commissioner for Conciliation, Mediation and Arbitration and Others (2018) 29 SALLR 5 (LAC); (2019) 40 ILJ 819 (LAC), it was held that:

‘[18] An arbitrator may commit a gross irregularity, fail to fairly try the issues or render an unreasonable award where under a duty to lend a helping hand and then fails to do so. Where the circumstances and procedural fairness so require, a commissioner must intervene in accordance with the precepts set out in the CCMA Guidelines. Not to do so will invariably result in an unreasonable award. The purpose of the helping hand principle is to prevent a procedural defect by ensuring that there is a full ventilation of the dispute and a fair trial of the issues. A commissioner commits a reviewable irregularity not only when the outcome of an award is unreasonable but also where the nature of the enquiry has been misconceived, which may happen when the issues are not ventilated by proper lines of enquiry.’

  • in casu the commissioner found that, since the evidence of the applicant’s witnesses constituted hearsay, the hearsay evidence was to be excluded because none of the grounds as provided for in s4 of the Law of Evidence Amendment Act 45 of 1988 (‘the LEAA’) existed. Thus, the issue concerns the regularity of the commissioner’s ruling on the admissibility of the hearsay evidence
  • as was mentioned in Exxaro Coal (Pty) Ltd and Another v Chipana and Others (2019) 40 ILJ 2485 (LAC); [2019] 10 BLLR 991 (LAC):

‘[3] [T]his pertains not only to the commissioner’s failure to consider whether the evidence was admissible in the interests of justice as contemplated in section 3 of the Law of Evidence Amendment Act, but also the timing of the commissioner’s ruling on the admissibility of the evidence; and the correctness or efficacy of ruling on such admissibility by invoking the provisions of the said section, either at the stage of review, or on appeal.’

  • the provisions of s138 of the Labour Relations Act 66 of 1995 (‘the LRA’) give a commissioner a discretion to conduct an arbitration in a manner that he or she considers appropriate to determine a dispute fairly and quickly, and to do so with a minimum of legal formalities. However, the labour court was mindful, once again, of the dicta in the Exxaro case, at paragraph [21], where the labour appeal court said that this discretion

‘does not imply that the commissioner may arbitrarily receive or exclude hearsay evidence, or for that matter any other kind of evidence. In the case of hearsay evidence, even though section 3 of the LEAA, by providing a set of rules or principles for the admission or exclusion of hearsay evidence, assumes some legal formality, it is invaluable. While a commissioner is notionally not obliged to apply it because of the discretion bestowed on him or her by section 138 of the LRA, the prudent commissioner does not err by applying it when dealing with hearsay evidence, rather than conceive of an alternative norm that will ensure not only fairness in the process, but also in the outcome of the arbitration. Applying the common law rules for the reception, or exclusion, of hearsay evidence appears not to be the answer, because those rules have already rightly been jettisoned for their “rigidity, inflexibility – and occasional absurdity”.  Those ‘epithets’ are not consonant with fairness and reasonableness.’

  • the labour appeal court further stated that those safeguards and precautions, duly adapted, apply equally to arbitration proceedings to ensure fairness and serve as an invaluable guide for commissioners and arbitrators when confronted with hearsay evidence, and, particularly, when applying s3 of the LEAA. 
  • for the purpose of the present matter, the labour appeal court, in the Exxaro case, went on to say the following, at paragraph [24]:

‘Adapted they would include the following:

(2) in applying the section, the commissioner must be careful to ensure that fairness is not compromised;

(3) a commissioner is to be alert to the introduction of hearsay evidence and ought not to remain passive in that regard;

(4) a party must as early as possible in the proceedings make known its intention to rely on hearsay evidence so that the other party is able to reasonably appreciate the evidentiary ambit, or challenge, that he/she or it is facing. To ensure compliance, a commissioner should at the outset require parties to indicate such an intention;

(5) the commissioner must explain to the parties the significance of the provisions of section 3 of the LEAA, or of the alternative, fair standard and procedure adopted by the commissioner to consider the admission of the evidence;

(6) the commissioner must timeously rule on the admission of the hearsay evidence and the ruling on admissibility should not be made for the first time at the end of the arbitration, or in the closing argument, or in the award. The point at which a ruling on the admissibility of evidence is made is crucial to ensure fairness in a criminal trial. The same ought to be true for an arbitration conducted in an adversarial fashion because fairness to both parties is paramount.’

  • it was apparent from the record of the arbitration proceedings that the commissioner had been acutely aware that she was faced with an inexperienced representative together with hearsay evidence being adduced.  She had therefore had a duty, in terms of the CCMA Guidelines, to lend a helping hand but had failed to do so and had appeared to adopt a passive attitude in that regard
  • following Exxaro, the labour court in casu concluded with a finding that to make a ruling on admissibility of hearsay evidence, only at the award stage, prevented a full ventilation of the dispute and a fair trial, resulting in such award being set aside on review

On what basis will a client of a labour broker be held vicariously liable for the injuries suffered by an employee employed by a labour broker when such employee performs functions at the client’s workplace?

Is an employer vicariously liable where its employee is sexually harassed by a superior employee?

It is well-established that an employer is vicariously liable (faultlessly liable) for the wrong committed by an employee during the course/scope/sphere of employment (Feldman v Mall 1945 AD 733).