In the recent decision of Jiyane v Amazon Development Centre (South Africa) (Pty) Ltd & Others (2025), the Labour Court reviewed and set aside an arbitration award due to the compromising conduct of the commissioner.
The case involved Ms Khanyisile Jiyane (“Ms Jiyane”), a former employee of Amazon Development Centre (South Africa) (Pty) Ltd (“Amazon”), who alleged that Amazon had failed or refused to reinstate or re-employ her in terms of an agreement concluded between the parties.
When this did not occur, Ms Jiyane referred an unfair labour practice dispute to the Commission for Conciliation, Mediation and Arbitration (“the CCMA”). Commissioner Goldman N.O., (“the Commissioner”) however, found that Ms Jiyane was not subject to any unfair labour practice and dismissed her claim. Ms Jiyane thereafter took the matter on review in accordance with section 145 of the Labour Relations Act 66 of 1995 (“the LRA”).
Ms Jiyane’s grounds for review included the conduct of the Commissioner during the arbitration and, in particular, she alleged that she was not afforded a fair hearing as a direct consequence of the Commissioner’s conduct.
The Labour Court, in evaluating the duties of a Commissioner, held that commissioners, generally, must ensure that any party appearing before them is given the right to a fair process. The Labour Court in particular stated:-
“[16] … Commissioners should refrain from unduly interfering during the process and more specifically not descend into the arena by interrupting parties and witnesses; cross-examining witnesses; and treating any party or witness appearing before them in any manner whatsoever which would cause that party/witness to lose confidence in the impartiality and unbiasedness of the commissioner…
[17]…What is not acceptable is for a commissioner to continuously interrupt, take over the questioning of a party and witnesses, and continuously questioning the relevance of what a party is trying to bring to their attention…”.
In evaluating the matter the Labour Court found that the Commissioner had overstepped in her role as commissioner and undermined the integrity of the arbitration by repeatedly interrupting Ms Jiyane’s evidence and the cross-examination of witnesses and conducting cross-examination of the witnesses herself, rather than allowing the parties to do so. The Court also expressed its concern that the Commissioner made prejudicial notes, such as referring to Ms Jiyane’s evidence as “rubbish” on two occasions, failing to properly explain the process to Ms Jiyane, an unrepresented litigant, and dominating the hearing to such an extent that Ms Jiyane was effectively sidelined.
Ironically, in her award, the Commissioner claimed that Ms Jiyane’s evidence was hard to follow at times.
A commissioner is permitted to adopt a more inquisitorial approach during arbitration hearings, especially where one party is unrepresented. However, the interactions between Ms Jiyane and the Commissioner, as reflected in the extracts from the record quoted by the Labour Court, are more akin to an attorney cross-examining a witness than a commissioner guiding and/or assisting an unrepresented applicant in presenting their case.
Given the above, the Labour Court held that the Commissioner’s conduct created a ‘reasonable apprehension of bias’, which the Court found was sufficient for the award to be set aside.
Interestingly, the Court noted that this was not the first instance where the same Commissioner’s conduct had been the subject of judicial criticism. Reference was made to prior Labour Court and Labour Appeal Court decisions, where similar patterns of overreach by her had been identified. The Labour Court noted that “It does not appear…that this court’s judgments have been noted, and corrective action having been taken either by Goldman or by the CCMA to avoid a continuation of such actions.” This, of course, raises broader concerns about commissioner accountability and the quality control mechanisms within the CCMA.
Although the Labour Court expressed strong criticism of the award and found the Commissioner’s conclusions regarding the evidence to be “completely inadequate and simply wrong”, it determined that it would not be appropriate to issue its own ruling on the substantive and procedural fairness of the alleged unfair labour practice. This was because the entire proceedings and the record before the Labour Court had been compromised by the Commissioner’s improper conduct. As a result, the Court remitted the matter to the CCMA for a fresh hearing before a different commissioner.
The Labour Court furthermore referred the matter to the Director of the CCMA to “take appropriate steps to ensure that parties before the CCMA are not subjected to similar actions by the commissioners of the CCMA”.
This judgment serves as a clear reminder that a fair process is a fundamental element of a fair outcome. While the facts of each case may differ, the manner in which proceedings are conducted must always meet the standard of impartiality, dignity and procedural fairness.
For employers, the case highlights the importance of ensuring that dispute resolution forums, particularly those involving unrepresented employees, remain procedurally sound. Employers should remain vigilant and proactive where irregularities arise, not only to safeguard their own interests but also to reinforce the integrity of the broader dispute resolution system.
