The perception that the adjudicator of a dispute may be biased is an ever-present risk. The issue is not a trivial one,
A long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done (R v Sussex Justices, ex parte McCarthy ([1924] 1 KB 256, [1923] All ER Rep 233)).
A hypothetical question can be used to provide context. “Is it advisable for an employer to have a ‘quick chat’ with the chairperson before a disciplinary hearing commences?”
An employee’s concern that there may be bias should not be a surprise, as it remains the employer’s prerogative to appoint the chairperson of a disciplinary enquiry. Engagement between the employer and the appointed chairperson is consequently unavoidable. It is therefore imperative that, that both parties guard against placing the chairperson in any position that may further compromise his/her perceived objectivity.
Should an employee perceive an element of bias in a disciplinary hearing, be it factually warranted or not, the hearing may be referred to the CCMA or Bargaining Council on the basis that the proceedings were procedurally irregular. Should the allegation of bias be upheld on referral, the disciplinary enquiry risks being found procedurally unfair, regardless of the substantive merits of the matter, and an award made against the employer.
The difficulty comes in defining bias. The colloquial meaning offered by the Oxford Dictionary is “inclination or prejudice for or against one thing or person”. However, this definition has to be expanded in a legal context.
In BTR Industries SA (Pty) Ltd and Others v Metal and Allied Workers Union and Another, the Supreme Court of Appeal stated that:
- For present, purposes there may be adopted the definition of ‘bias’ stated in the House of Lords by Lord Thankerton in Franklin v Minister of Town & Country Planning 1948 AC 87 (HL) at 103. It was there said that the proper significance of the word- ‘is to denote a departure from the standard of even-handed justice which the law requires from those who occupy judicial office or those who are commonly regarded as holding a quasi-judicial office.
The
principle of double unreasonableness can be used to demonstrate such a
departure. In SA Commercial Catering and Allied Workers Union and Others v Irvin
& Johnson Ltd, the Constitutional Court held:
- Double unreasonableness requirement also highlights the fact that mere apprehensiveness on the part of a litigant that a Judge will be biased.
- The court must carefully scrutinise the apprehension to determine whether it is to be regarded as reasonable. In adjudging this, the court superimposes a normative assessment on the litigant’s anxieties. It attributes to the litigant’s apprehension a legal value and thereby decides whether it is such that it should be countenanced in law.
In essence, the mere perception of bias is not sufficient in itself. It must also be reasonable. A twofold test must therefore be applied:
- Has bias been perceived? And,
- Was this perception reasonable?
A practical application of this test, in an employment-related matter, can be found in Tiger Brands Field Services (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JR 2650/2010) [2013] ZALCJHB 216.
In this case, an employer took a CCMA hearing on review to the Labour Court, alleging, amongst other things, that the commissioner had been biased. The employer’s allegation of bias was based on the employee’s representatives having been witnessed talking to the commissioner in private, out of the employer’s earshot. On review, the judge recognised that the engagement might have given rise to a perception of bias. However, he argued that the accusation fell short in the second leg of the test. No objections to the private engagement had been made in the initial arbitration. Furthermore, there were no other corroborating factors to substantiate an allegation of bias. Had an objection been made in the initial arbitration to the commissioner, the allegations would necessarily have been addressed, and the commissioner would have had to either proceed or recuse themselves. In the absence of such an objection, a different outcome remains speculative.
Although this case demonstrates the practical application of the bias test in employment law, it also highlights the potential dilemma of litigation facing both the chairperson and the employer and one that can be easily avoided. It is for this reason that in disciplinary processes, it is best for all interactions between the chairperson of the proceeding and either the employer or the employee to be done with all parties present.
With this test in mind, reconsider the initial hypothetical question, “Is it advisable for an employer to have a quick chat with the chairperson before a disciplinary hearing commences?”. While it is not forbidden, it is certainly not advisable.
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About The Author:
Konrad Clifton started his career at SEESA in 2018 and is currently a SEESA Legal Advisor at SEESA’s Cape Town office. He is an admitted attorney and obtained his LLB thought UNISA, while serving in SANDF.