The continued failure of the CCMA to reign in biased, unqualified commissioners could not only potentially devastate business, but severely erode public trust, says East London hotelier Dr Peter Gregersen, who graduated with a Doctor of Business Administration on the topic last year from the Faculty of Business and Economic Sciences.
The Blue Lagoon Hotel general manager says that although the CCMA has, by and large, effectively fulfilled its mandate, rushed caseloads and reaching speedy conclusions on some decisions seem unwarranted.
His research revealed gross irregularities, misconduct and bias, with an alarming trend of dishonesty and bribery, as well as lack of knowledge of the law, pressure to settle matters, economic and language challenges, racism, gender bias, a lack of training to evaluate facts and evidence objectively and too few properly qualified commissioners.
The data on dishonesty and bribery were particularly worrying, he says. “This (data) was probably the most alarming, and (shows) the existence of a severe problem facing the CCMA – and the trust that people have in the Commission.”
His research culminated in practical suggestions for addressing and reducing biased decision-making within the organisation, and he credits his supervisor, Professor Paul Poisat, for guiding the process and sharing his passion for the topic.
Rooting out the rot
“In layman’s terms, the purpose of the CCMA in South Africa is to resolve labour disputes through conciliation and/or arbitration, which is legally binding as per the Labour Relations act 66 of 1995, when it was established,” says Dr Gregersen.
“As a Chartered Human Resource practitioner with the SA Board for People Practices (SABPP) and having been to the CCMA from time to time, I realised that some of the decisions made by commissioners seem to be rushed and not necessarily the right decision.
“The requirement to adjudicate impartially in a judicial sphere by an adjudicator that does not take sides or have bias is a legal requirement in the judiciary.”
Bias, prejudice and discrimination, however, were present in the CCMA, which is a quasi-judicial sphere, and is rooted in psycho-social bias, he explains.
Dr Gregersen’s thesis explores how biased decisions manifest, and creates a usable framework to remove bias not only from the CCMA, but from any sphere.
Examples of personal bias included the CCMA versus Engen in 2007 and Tebogo Brian Monare versus South African Tourism as first respondent, and the CCMA as second respondent in 2015.
Taken under review, the cases clearly showed that commissioner opinions were biased, and that evidence was ignored, he says.
“The Engen and Monare cases confirm that commissioners’ decisions are prone to personal bias, regardless of legal process designed to ensure the contrary.”
The standard application of “same rules for all people” also was not consistently applied, together with problematic case management, with a “failure to weed out frivolous and vexatious disputes.”
A boiling pot
Lack of consequences for making biased decisions, and a poor understanding of social justice, are breeding grounds for a knock-on effect on both individuals and businesses, says Dr Gregersen.
“There are primarily two aspects at play when one considers bias within the ambit of commissioners’ decision-making – the legal judicial side and the psycho-social side of bias, which negatively affects all people, and their rights.
“When considering bias, one would need to know one’s own personal bias, such as language, ethnicity, upbringing, education, or religion, for example.
“People often recall incidents and make judgements from past memory and conclusions (and this affects) how individuals see the world, community, society and each other.”
Having legal systems in place to recognise biased judicial decisions by an arbiter – which leads to a legal, binding decision – is critical, he says, as the impact of biased decision-making on business can be financially crippling.
“A wrongful decision in awarding compensation up to a maximum of 24 months’ compensation for unfair dismissal, for example, can cost businesses dearly.”
How the CCMA can improve
Dr Gregersen says that the CCMA can manage its caseloads more effectively, by rejecting pointless cases, employing commissioners with formal legal qualifications and improving training in the reduction of biased decision making.
“Various mechanisms need to be injected into the processes to force a reduction of bias. Behavioural and process changes must be addressed both within the CCMA and human resources field.”
Extensive training to significantly reduce bias was critical. “The CCMA, which is the custodian of dispute settlement in the labour sphere, is obligated to ensure that fairness and an unbiased system prevails in our society.
“This can only be achieved through investigative research by the CCMA to root out biased decision-making and improve society’s perception of the organisation.
“The mere hint of corruption and bribery should be eliminated firmly. This can be done by publishing publicly accessible tracking data on commissioners’ awards, employing suitably qualified, legally trained commissioners, and introducing a vetting system … for cases before (these are) entered into the system for adjudication.”
There have been many positive outcomes for both business and employees through the CCMA, says Dr Gregersen, but improvements must be made – and soon.
What type of CCMA would he like to see operating in South Africa in the near future?
“A CCMA that is transparent, with well-qualified commissioners who hold law degrees, such as an LLB, a vetting process to eliminate frivolous cases and the speeding up of the process of review, with costs awarded according to the outcome.
“All this can be achieved by holding commissioners accountable for their actions.”