A very important person once said, South African "Commissioners [CCMA Labor Arbitrators] have a lot to think about". Attached hereto is one of the many examples of innumerable duties of a Commissioner that the SA Labor Courts pronounced upon and to a large extent clarified the reach, so to speak of the duty of a Commissioner to assist a party in terms of the "Helping Hand" principle cum duty.

 

The duty to offer assistance during arbitration proceedings, normally to a "layman, or rather 'layperson'", has been an issue of great concern especially the thin [blue] line between legitimate intervention by an arbitrator and assistance amounting to advancing one party's case at the expense of another. [See: Coin Security Group (PTY) Ltd v Machago (2000) 5 LLD 283 (LC) at 1505].


The SA Labor Court in Anglo Operations (Kriel Colliery) confined the boundaries of the "Helping Hand". La Grange J, held that whether an arbitrator is obliged to lend a helping hand to a party depends on the circumstances. After considering relevant case law, the Court noted that in this case the employer’s representative had never stated that he was unfamiliar with the arbitration process. He represented a major corporation which should ensure that it sent adequately trained representatives to the CCMA.

 

‘HEAD NOTE:

 

Application in terms of section 145 of the LRA

 

Commission for Conciliation, Mediation and Arbitration – Arbitration proceedings – “Helping hand” – Commissioner not obliged to remind representative of large corporation to meet inconsistency challenge which had been raised at outset and for which factual basis laid.’ [Courtesy of LexisNexis - BLLR].

 

The SA Labor Appeal Court (LAC) in, GOLD ONE AFRICA LIMITED MODDER EAST OPERATIONS and JOHANNES PETRUS DIEDERIK VAN DER WESTHUIZEN & COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION (Case no: JA 53/13) Delivered: 03 July 2014 (LAC) Davis AJA found that one of the three issues that emerged as central to the disposition of the dispute was that the Commissioner failed in his duty to provide assistance to the Applicant/Employee [The First Respondent in the Appeal] given that the Applicant/Employee was unrepresented at the arbitration proceedings.

The (LAC) at [14] found:

Assistance to first respondent by second respondent

[14] First respondent contended that as he was not represented, second respondent had not provided sufficient assistance to him during the hearing. In his supplementary affidavit, first respondent averred as follows:

‘The second respondent failed, refused and/or neglected to assist me, an unrepresented lay person, to place his case properly before the CCMA, i.e.

i. assisting me in explaining to me what evidence should be led;

ii. assisting me in what allegations should be made;

iii. assisting me in explaining to me how to place my version before the CCMA.      

The 2nd respondent failed, refused and/or neglected to assist me, a lay person, in cross examination of the respondent’s witnesses.

The 2nd respondent failed, refused and/or neglected to assist me in putting my case properly before the CCMA.’ At [16] the Court held:

  ‘[16] If a reviewing court must avoid ‘judicial overzealousness’ in setting aside administrative decisions that do not coincide with the courts own view, it must also be careful not to impose its conception of the manner in which an institution such as third respondent [the CCMA] organizes a hearing. Before a court interferes with a decision made by a representative of third respondent [the Commissioner], the least that is required by a complainant as first respondent [the Applicant /Employee] is a clear exposition as to how an arbitrator should have come to the assistance of the complainant. In this case, an examination of first respondent’s cross examination of Ms Mokoena reveals that he put his version to Ms Mokoena and asked all of the questions which could reasonably be expected by a cross examiner. The cross examination of Mr Ciko was somewhat shorter. The reason appears to be that the essential point first respondent made was that Mr Ciko had waited for ‘a month and six days before you lodged a complaint’.

 

‘[17] For these reasons in particular, it is difficult to see on this record precisely where the second respondent [the Commissioner] failed to conduct a fair hearing. Were this court to come to the aid of every unrepresented person who, after receiving ex post facto legal advice, claims that there was procedural unfairness at the hearing conducted by a member of third respondent [the CCMA] but does so vaguely at best, or in general terms without any specification, the very process of arbitration hearings before so vital an institution as third respondent would grind to a litigious halt. Almost every case in which an adverse finding against an unrepresented person has been made would then be the subject matter of a review. On these papers and on these facts, there is no merit in the argument of first respondent’.

 

The (LAC) in Gold One Africa in effect found that a mere unsubstantiated allegation 'so vaguely at best, or in general terms without specification' that the Commissioner failed to provide assistance in terms of the 'Helping Hand' principle would not suffice.

 

In such event the effect would be that every adverse finding against an unrepresented person would then be taken on review based on a vague allegation that assistance should have been offered by the Commissioner to the Applicant.

 

As a consequence the Commission would not be able to comply with the 'Purpose of this Act', Section 1(d)(iv) of the LRA, 'the effective [expeditious] resolution.

 

Employment Equity Amendment Act, Act No 47 of 2013 (the EEAA) came into operation by means of promulgation with effect from 01 August 2014.

 

The EEAA as well as other amendments to SA Labor Legislation, to wit the Labor Relations Act, 66 of 1995 (the LRA) and the Basic Conditions of Employment Act, 75 of 1997 (the BCEA) formed the subject matter of extensive consultations held over a period of almost four years at NEDLAC whereupon 'consensus' was reached as to most of the amendments required in order to reform SA Labor Legislation.

 

To date only the EEAA has become law and it is expected that the amended LRA and BCEA would be enacted in the very near future.

 

This article is intended to be 'PART-ONE' of possible follow-up articles wherein the focus would be on the EEAA, Sections 6(4) & (5) - the amendments to the principal Act, namely the Employment Equity Act, 55 of 1998, and more specifically the Sections in the EEAA that deals with 'Equal Pay for Work of Equal Value'.

 

At the outset it should be recorded that the subject matter 'Equal Pay for Work of Equal Value' is by its very nature complex in substance, legally technical in nature insofar as it raises all sorts of legal questions, as well as concerns pertaining to issues such as the practical implementation of measures in compliance with the law; and other more controversial issues based on the economic or financial realities of employers that may inhibit legal compliance - to name a few of the many variables.

 

It was deemed apposite to refer to a panel discussion by Labor Law Experts, P Benjamin, S Gaibie & C Todd, '24th ANNUAL CURRENT LABOUR LAW SEMINAR' LexisNexis (2013) where the observation was made that Sections 6(4) & (5) clarify rather than change SA Equity Laws. The question posed was will the EEAA lead to an increase in litigation? The World Economic Forum gave SA a score of 0,65 for wage equity, namely that male workers receive 30% more than females doing the same work.

 

In an authoritative article by J Grogan, 'The New Dispensation, Part 2: The Amendments to the EEA and the BCEA' Employment Law Journal LexisNexis (2014) Vol. 30 Part 3, the learned author observes: 'As is now well known, the EEA attempts to strike the delicate balance enjoined by the Constitution between the individual’s right to equality and the promotion of equality by legislative measures “designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination” (Constitution of the Republic of South Africa, 1996, sections 9(1) and 9(2)). The Employment Equity Act 55 of 1998 is the legislative measure designed to promote equality in the workplace. Employment equity plans adopted in terms of that act are the “measures”.


The overall aim of the amendments to the Employment Equity Act 55 of 1998 is “to further regulate the prohibition of unfair discrimination against employees” and “to provide afresh for the assessment of compliance by designated employers”. As will appear from the review of the amendments set out in this article, the former aim seems to have been made decidedly subservient to the latter.'

 

Insertion of new sections 6(4) and 6(5) – Work of equal value

 

The new Section 6(4) has been introduced to deal explicitly with unfair discrimination by an employer in respect of the terms and conditions of employment of employees doing the same or similar work or work of equal value. A differentiation based on a proscribed ground listed in Section 6(1) or any other arbitrary ground will amount to unfair discrimination unless the employer can show that differences in wages or other conditions of employment are in fact based on fair criteria such as experience, skill, responsibility and the like.In terms of Section 6(5), the Minister of Labor will be empowered to publish a code of good practice dealing with criteria and methodologies for assessing work of equal value.

 

Suffice it to record that the EEA Regulations, 2014 has been published and the contents thereof as well as other pertinent issues and questions as to the subject matter would be addressed in PART-TWO.