Study of bias within CCMA Commissioners decision making processes

Gregersen, Peter

Title: Study of bias within CCMA Commissioners decision making processes
Creator: Gregersen, Peter
Subject: South Africa. -- Commission for Conciliation, Mediation, and Arbitration
Subject: Mediation and conciliation, Industrial -- South Africa
Subject: Ethics
Subject: Decision making
Date Issued: 2023-12
Date: 2023-12
Type: Doctoral theses
Type: text
Identifier: http://hdl.handle.net/10948/65622
Identifier: vital:74206
Description: The South African law places a duty on judicial officers; to “protect the Constitution and the human rights entrenched in it, and will administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law. CCMA rulings have consistently come under review for “gross irregularities”, “misconduct” and bias as set out in section 145 of the Labour Relations Act. The Engen and Monare cases confirm that Commissioners’ decisions are prone to personal bias regardless of legal process designed to ensure the contrary. The linkage of bias, prejudice and discrimination has not been fully explored in a quasi-judicial sphere within South Africa. The key objective of the research was to determine the prevalence of bias and identify legal and psycho-social factors impacting Commissioners’ decision-making within the quasi-judicial body of the CCMA. A secondary objective includes the development of a mechanism for reducing bias decision-making. There are primarily two aspects at play when one considers bias within the ambit of commissioners’ decision-making. Firstly, the legal judicial side, section 145 of the Labour Relations Act and secondly, a psycho-social side of bias that effects all people. The formulation of decision making in a psychological sphere is fraught with many obstacles such as framing effects, heuristics, forecasting and indeed decoding or understanding of the problem and solution to be found. The relevance is that bias can be defined by a rationally explained theory that has been irrationally applied. A biased outcome causes a reaction. Due to the reciprocal nature of the reaction of the prejudice, bias can be seen as centred on an event or practice which would give it an ontological value based on biasness being an event. One would then classify bias as a sub-group of a form of discrimination which is in itself a sub-group of prejudice that directly effects social justice and is impacted by stereotypical attitudes and social dominance. The purpose of this research was to show the prevalence of bias in a semi-judicial state sanctioned body and the impact that ineffective, contradictory rules and laws have on the business community at large. In addition, a mechanism to be implemented that would reduce the bias phenomena from the CCMA and business organisations. This research was undertaken to uncover trends and provide insights into bias. During the conciliation/arbitration process various rules are ignored. Therefore, the gleaned insights from experts assisted in identifying whether the systems that are in place need to be improved upon and if manipulation of the processes does take place. As this research was the study of bias within the legislative framework of the CCMA the primary method of research was a deductive survey supported by a literature review and an archival research. In addition to the quantitative research a qualitative research approach using a semi structured interview was used for the study. Non-probability purposive expert sampling including six legal practitioners, au fait with CCMA procedures, were interviewed to determine their experience and views on Bias within the CCMA. Due to the technical expertise required in various Labour Laws, incorporated into the research problem, a qualitative research approach with inductive rather than deductive reasoning was preferred to facilitate understanding of the prevalence of bias. With the gap being a lack of properly qualified Commissioners. It is evident when a standard application of the same rules for all the people are not applied. In addition, with case management in regard to the referral of matters to weed out frivolous and vexatious disputes. The circumstances that result in biased decision making by Commissioner’s are numerous, corruption, racism, gender bias, ineptitude, lack of knowledge of the law, pressure to settle matters, a language component, an economic component, and lack of training to evaluate facts and evidence objectively. Additionally, a lack of consequences for taking biased decisions, rather than a decision that is necessarily right in law. Furthermore, a poor understanding of social justice is evident. The findings of which were that bias does exist and does have an impact on social justice. The CCMA can improve on their performance by managing their caseloads more effectively, with rejecting frivolous cases, employing commissioners with a formal legal qualification and improved training in the reduction of bias decision making. HR practitioners and labour practitioners leading cases at the CCMA can benefit by the psycho-social and legal (procedural) influences identified in the study. This study contributes to the understanding of Bias within a quasi-judicial system and explores the various contradicting laws and systems in use that expose Bias and the views from legal experts on ways to mitigate Bias. This study contributes to the literature of Bias within these systems and further research must explore the underlying causes of overt and covert Bias within the CCMA.
Description: Thesis (DBA) -- Faculty of Business and Economic Sciences, Business School, 2023
Format: computer
Format: online resource
Format: application/pdf
Format: 1 online resource (xi, 296 pages)
Format: pdf
Publisher: Nelson Mandela University
Publisher: Faculty of Business and Economic Sciences
Language: English
Rights: Nelson Mandela University
Rights: All Rights Reserved
Rights: Open Access

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