What was intended to be a “quick and easy” process of arbitration has not been the reality, with there being major contestation at arbitration and beyond. After all, the issues ventilated at arbitration involve the livelihood of workers and, usually, the safeguarding of some form of commercial interest for employers. The principles we discuss in this alert apply to both the CCMA and bargaining councils.

When the CCMA was first established, it was intended in general terms that lawyers would be excluded from arbitration proceedings, with the terrain being left to parties such as unions and employer organisations who would do ‘gentle battle’ in arbitration before independent commissioners. To this end, it was imperative that commissioners would control of the proceedings to ensure the administration of workplace justice through the process. It was and remains imperative that the public have confidence in these dispute resolution bodies. But what happens when emotions run high at arbitration, which often happens, and disrespect is shown to opponents or the arbitrator?

Lawyers are trained to observe decorum in the battle theatre of litigation, even to the point of defeat. The same cannot automatically be said of persons who do not have legal training. The Labour Relations Act 66 of 1995 (LRA), particularly section 142(8), provides that a person commits contempt of the CCMA if they:

• wilfully hinder a commissioner in performing any function under the LRA;
• insult, disparage or belittle a commissioner, or prejudice or improperly influence the proceedings or improperly anticipate the commissioner’s award; or
• wilfully interrupt the proceedings or misbehave.

Defining contemptuous behaviour

Recently, in the case of Harmse NO and Another v Mphahlele [2024] ZALCJHB 490 the Labour Court had to determine whether the conduct in arbitration proceedings of Mr Ephraim Mphahlele, a union official of the National Transport Movement, was contemptuous.

During the arbitration, Mphahlele interrupted Transnet’s representative and the commissioner on several occasions, was disruptive and even disrespectful. Even after the commissioner’s ruling on certain points or objections, Mphahlele refused to accept the commissioner’s ruling and went to on debate and be critical of the commissioner. This conduct hampered the progress of the arbitration proceeding. The court found that Mphahlele was contemptuous. As a result, he was suspended from representing any party at the CCMA or any bargaining council anywhere in the country for a period of four months. Mphahlele was fortunate to have escaped a cost order or a longer period of suspension.

The Harmse judgment emphasises the point made in the Labour Court decision of Bargaining Council for the Clothing Manufacturing Industry and another v Prinsloo [2007] 9 BLLR 825 (LC); [2007] 28 ILJ 1754 (LC) that there are consequences for disruptive and disrespectful behaviour.

As the court observed in Prinsloo:

• There should not be a perception that if someone conducts themselves in a contemptuous manner, their conduct will not amount to a serious offence.
• Rather, there should be no doubt that if anyone conducts themselves in a contemptuous manner “they will be treated appropriately by being suspended from appearing in these forums, or by imposing fines and, in extreme cases by possibly being imprisoned”.
• A serious sanction is imposed against contemptuous conduct with the aim of “hopefully deterring the perpetrating by other parties of such conduct”.

Screaming, shouting, being vulgar and leaning across the table to intimidate a party can all amount to contemptuous behaviour.

The recent Labour Court order against Mphahlele should be a reminder to anyone who steps into a CCMA venue (for conciliation or arbitration) that despite the casual set up, commissioners are servants of workplace justice entrusted with ensuring its administration and who command respect by operation of the law.

Their rulings, directives and awards are not open to debate and scrutiny unless a Labour Court is approached to challenge a decision. Proceedings in the CCMA and bargaining councils are meant to be civil, and parties should remember to act accordingly. Afterall, workplace litigation was not intended to be a “Rumble in the Jungle”.