Presiding officials, wakey-wakey!

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Chairpersons frequently impose or recommend a sanction of summary dismissal where security guards face allegations that they were caught sleeping on duty as such conduct exposed the premises, which were to be secured by the security provider, to some danger.

Regardless of the nature of the workplace, it is generally accepted that no one should be asleep while on duty.

There is a general assumption that all presiding officials, such as chairpersons and arbitrators, are wide-awake and alert during proceedings. General assumptions are, however, not watertight.

So, what happens when the chairperson or the arbitrator nods off or falls briefly asleep?  Do explanations such as “I closed my eyes but I was listening”, or “I momentarily lost concentration”, mean that the party in question was not prejudiced, and that the presiding official was on top of all the evidence when making a finding on a balance of probabilities?

A quick international survey to establish whether this applies only to South Africa tend shows that it is not uncommon elsewhere in the world for presiding officers to fall asleep during hearings.

When the federal arbitrator fell asleep at least eight times during the arbitration between the Kendall County sheriff’s office and the Fraternal Order of Police in the USA, one of the issues which debated by the parties was whether the arbitrator should be paid for the full day or not.

It would seem that the Brits have found the perfect solution in instances where British judges fall asleep during the trial – counsel is required to wake the judge so that the matter can proceed.

In South Africa, the Labour Court has been required to deal with a handful of instances where one of the parties has taken the award on review, citing inter alia that the arbitrator had fallen asleep.

The approach adopted by the Labour Court in determining whether such conduct on the part of the arbitrator constituted sufficient prejudice to the party to constitute a reviewable irregularity, was to determine whether the arbitrator briefly failed to note material evidence, or whether the nap impacted negatively on the findings made.

The matter of Value Logistics (Personnel) Services v Letsoalo (2014) was one of the first reported judgments which, among other questions, turned on the submission that the arbitrator was “drowsy” and “had fallen asleep”. The Court found that falling asleep during the arbitration was a reviewable irregularity.

Steenkamp J took a different approach in the matter of  D Gordon v  JP Morgan after finding that the arbitrator had fallen asleep despite her version that she only “momentarily lost concentration” and that although she had closed her eyes, she was listening:

  • On the probabilities, and taking a robust approach, it seems clear to me that the commissioner did fall asleep. But that is not the end of the enquiry. If she only momentarily lost concentration, the employee may not have been prejudiced.
  • Unlike Value Logistics, where the arbitrator “appeared drowsy and at times fell fast asleep during the course of the arbitration proceedings” the commissioner in this case appears to have nodded off on a single occasion.

The Court compared the commissioner’s handwritten notes to the transcript and concluded that the arbitrator probably missed two lines or so of the recorded evidence which amounted to a “momentary lapse” of concentration and which did not deprive the employee of a fair hearing. On these grounds the Court held:

 “This incident is not, in my view, sufficient to have the entire award reviewed and set aside.”

In the most recent judgment to come out of the Labour Court in the matter of SASBO obo Mahlangu v Commission for Conciliation, Mediation and Arbitration and Others (JR 1142/15) [2019] the court had the following to say:

[28] “The applicant has not established any basis upon which the Court could find that the commissioner’s award is reviewable. As aforesaid, the arbitrator considered all the evidence before him and applied his mind to the issues raised by the parties. As such, it failed to discharge the onus of establishing that the commissioner reached a decision that a reasonable decision-maker could not make. There is, therefore, no reason for this Court to interfere with the arbitrator’s award.

One of the reasons for having made this finding is provided at para [24]:

[24] “(..) the applicant must demonstrate that the commissioner’s misconduct had a distorting effect on the ultimate decision that he made. In other words, the applicant must make out a case showing that the alleged sleeping by the commissioner during the arbitration proceedings resulted in a mistrial of issues and/or failure by the commissioner to resolve the substantial dispute between the parties. It is apparent from the award that, but for the irregularity, a different outcome would not have resulted.”

The importance of these judgments

 It would appear that the most recent judgments support the following approach:

If the presiding official is not fully alert during the entire hearing, the only question to be considered is whether one of the parties was prejudiced because the chairperson or the arbitrator missed material evidence which had a negative impact on the findings made.  It must therefore stand to reason that only if material evidence was overlooked or misconstrued as a consequence, the findings would be unfair.