Can an employee in a labour dispute request the chairperson to recuse themselves because the chairperson is of the same race as the employer’s legal representative?
The employee, who described himself as a “Black male”, demanded the recusal of the CCMA-appointed Commissioner, an Indian male, on the basis that the Commissioner and the employer’s attorney and counsel were also Indian. Therefore, the arbitration proceedings were “racially imbalanced” against him.
The Commissioner found that this was not a valid ground for his recusal but withdrew from the matter and stated that “the affront to his dignity may lead to the seeds of bias being planted”. The employer approached the Labour Court urgently to set aside the Commissioner’s decision to recuse himself.
Relevant legislation considered:
- Section 34 of the Constitution of the Republic of South Africa 1996 – everyone may have any dispute be resolved by the application of law decided in a fair public hearing by an impartial officer;
- Section 165(2) of the Constitution – should apply the law impartially and without fear, favour or prejudice.
The Labour Court noted that South Africa is a multi-raced society. Therefore, if presiding officers were allowed to recuse themselves based on race, then litigation would be rendered impossible.
The litigant must demonstrate a reasonable apprehension of bias and not just an allegation.
The Labour Court, in this matter, dismissed the employer’s application to set aside the Commissioner’s decision to recuse himself.
A litigant cannot request the recusal of a presiding officer based on race as baseless allegation without evidence of such discrimination. Racially imbalanced proceedings do not automatically constitute race discrimination.
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About The Author:
Andre Symington joined SEESA in January 2009. He is currently a Labour Legal Advisor. Andre obtained his LLB degree from the University of the Free State.
Resources:
- Cell C (Pty) Ltd v Finger and others (2006) 10 BLLR (919) LC.
- The Constitution of South Africa
Recognition for this article is given to the original author Michael Yeates and Thato Maruapula from Cliffe Decker Hofmeyr Attorneys (article from their website published on 20 June 2022).