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Labour Relations Act, 1995 (Act No. 66 of 1995)

Commission for Conciliation, Mediation and Arbitration

Code of Conduct for Commissioners

4. General conduct of Commissioners

 

 

4.1 Commissioners must conduct themselves, both In relation to the processes of the CCMA and outside of their working activities on behalf of the CCMA, in a manner that is consistent with the office and standing of the CCMA and its commissioners2.

 

Prohibited conduct

 

4.2 Commissioners must not
4.2.1 solicit appointment for themselves; this shall not, however, preclude commissioners from indicating a willingness to serve in any capacity;
4.2.2 accept appointments unless they are available to conduct the process promptly and are competent to undertake the assignment;
4.2.3 enter into any financial, business or other relationship which is likely to affect their impartiality or which might reasonably create a perception of partiality or bias;
4.2.4 influence CCMA officials or employees by improper means, including gifts or other inducements.

 

Conflict of interests and disclosure

 

4.3 Commissioners should disclose any interest or relationship that is likely to affect their impartiality or which might create a perception of partiality. The duty to disclose rests on the commissioner.

 

4.4 Commissioners appointed to intervene in any matter should, before accepting, disclose directly to the CCMA or through their accredited agents:
4.4.1 any direct or indirect financial or personal interest in the matter; and
4.4.2 any existing or past financial, business, professional, family or social relationship which is likely to affect impartiality or may lead to a reasonable perception of partiality or bias.

 

4.5 If the circumstances requiring disclosure become known to a commissioner after the appointment is made, disclosure must be made as soon as these circumstances become known to the commissioner. Without limiting this obligation, disclosure may be required in arbitration proceedings if a witness is called who has a relationship with the commissioner of the kind referred to in 4.4.2.

 

4.6 After appropriate disclosure, commissioners may serve if both parties agree to this, but if they believe that a conflict of interest exists they should recuse themselves, irrespective of the views expressed by the parties.

 

4.7 If there is a request for recusal, commissioners should require the parties to follow any procedure provided for in any applicable terms of reference or rules for the conduct of proceedings before making a ruling cm the matter.

 

4.8 If commissioners, after carefully considering the matter, determine that there is not a reasonable apprehension of bias and that they can nevertheless act impartially and fairly, and that the withdrawal would cause unfair delay or would be contrary to the ends of justice, they should not recuse themselves.

 

Commissioners with outside interests

 

4.9 Commissioners who have a financial interest in or serve as panellists for a private dispute resolution agency (whether accredited or not) or who have a financial interest in or work for or run their own consultancy or law firm must give particular consideration to the potential for actual or perceived conflicts of interest arising from their conduct or that of their colleagues.

 

4.10 A commissioner must fully disclose any role or interest referred to in clause 4.8 -
4.10.1 to the CCMA during any interview or selection process and must advise the CCMA of any relevant change in their role or interest; and
4.10.2. to the parties in a matter in the circumstances contemplated by clauses 4.3 to 4.5.

 

4.11 No commissioner may, while acting in the capacity as commissioner, promote the use by parties of any agency, consultancy or firm in which he or she has a role or interest contemplated by clause 4.9.

 

4.12 No commissioner may serve in the capacity as commissioner in any CCMA process concerning a dispute or matter in which any agency, consultancy or firm for which that commissioner works or in which that commissioner has an interest has advised or assisted a party to the dispute unless the Convening Senior Commissioner has been advised and all parties to the dispute expressly consent to this after full disclosure.

 

CCMA Commissioner Responsibilities

 

4.13 Commissioners should not use their status as commissioners to seek work or work opportunities outside the CCMA, except to the extent that this may reasonably be referred to as part of a commissioner's curriculum vitae or resume.

 

4.14 The title of commissioner or CCMA commissioner may not be used other than in the ordinary course of discharging the business of the CCMA, and any reference to a commissioner's status must, If the commissioner is a part-time commissioner, state this.

 

4.15 A part-time commissioner acting as employee, agent or consultant for any person other than the CCMA must make it clear at all material times that he or she is acting in that capacity and not in the capacity as a part-time commissioner.

 

4.16 Commissioners must ensure that their personal financial matters are in order in relation to tax and other legal compliance.

 

4.17 Commissioners must ensure that as they become available disclose any civil or criminal judgements against them to the CCMA,

 

4.18 Commissioners must use all available dispute resolution and grievance resolution processes in accordance with their contractual obligations.

[Note – Numbering error (nonappearance of 4.19) as published in the original Gazette)

 

4.20 Commissioners must ensure that they maintain a fit and proper status to hold the office of commissioner.

 

Jurisdiction

 

4.21 Commissioners must observe faithfully both the limitation and inclusions of the jurisdiction conferred by an agreement or by a statutory provision under which they serve.

 

4.22 A direct settlement by the parties of some or all issues in a case, at any stage of the proceedings, should be accepted by a commissioner as relieving him or her of further jurisdiction in respect of such issues, This does not prevent the Commissioner from scrutinising the settlement, in appropriate cases, to ascertain if the parties understand the terms and implications of the settlement. If the parties request that a settlement agreement be made an arbitration award, the Commissioner must ensure that such an award is legally competent and capable of being enforced.

 

Competence

 

4.23 Commissioners should decline appointment, withdraw or request technical assistance if they believe that a matter is beyond their competence.

 

4.24 Commissioners acting as conciliators or mediators must understand the issues which form part of the dispute before endeavouring to assist the parties to settle the dispute. In this regard, commissioners should spend time at the beginning of the proceedings to ensure that they understand the positions, needs and expectations of the parties.

 

Availability

 

4.25 Part-time commissioners must make themselves available to the CCMA for the whole period for which they are reserved by the CCMA unless excused by the Convening Senior Commissioner (CSC), delegate of the CSC or other authorised manager, and should notify the relevant manager if they need to leave the CCMA premises early for any reason.

 

Recording equipment

 

4.26 All Commissioners must ensure that they have suitable audio recording equipment available at all times, maintained in good working order, as a tool of their profession. They must ensure that the equipment is available for recording arbitration proceedings and any other proceedings required to be recorded. A Commissioner who is provided with recording equipment by the CCMA must maintain that equipment in good working order.

 

4.27 Commissioners must ensure that all proceedings required to be audio recorded are properly recorded and must ensure that recordings are stored securely according to standard operating procedures applicable within the CCMA from time to time.

 

Access to electronic communication

 

4.28 Commissioners must have access to a working computer and a working email address for communication with the CCMA and for the submission of awards and rulings. Commissioners must check and respond to email correspondence timeously and on a regular basis.

 

Property of the CCMA

 

4.29 Commissioners must exercise due care to protect all CCMA property in their possession or to which they have access, including without limitation laptops and vehicles, and must take reasonable steps to prevent loss of or damage to CCMA property.

 

 

2 This means, for example, that commissioners should not fraternise inappropriately or engage in intimate relationships with junior staff members or parties to processes before the CCMA, or seek to do so, in a manner that may reflect negatively on the CCMA.