- The case centres on whether an employee representing himself received a fair arbitration hearing.
- Adams says the commissioner allowed two legal representatives to repeatedly interrupt him during his case.
- Judge Lagrange found the arbitration should be heard again before a different commissioner.
A public servant representing himself has challenged the fairness of a labour arbitration, saying that persistent interruptions and the commissioner’s handling of the proceedings denied him a fair chance to present his case.
In a judgment delivered by Judge R Lagrange, the Cape Town Labour Court looked at whether the arbitration had become so one-sided that the commissioner should have stepped aside. The dispute was not about whether Dr Gavin Adams should have been appointed, but whether he received a fair hearing.
‘I’m just an employee’
The defining moment of the case came during the arbitration when Adams, representing himself against two legal representatives from the Department of Water and Sanitation, spoke out about the imbalance in the room.
“I’m sitting up here against three legal people, and they are having a field day. I’m just an employee,” Adams told the commissioner. The commissioner replied, “My role is not to defend you or them. I’m required to give guidance to lay people.”
He also said the proceedings were adversarial, and the department’s representatives were entitled to try to win the case, as long as they did it with respect and decorum.
Adams also complained that the commissioner told him “We don’t operate with feelings” and took offence at a remark suggesting he have “a glass of wine tonight or whiskey” before getting ready for cross-examination.
How the dispute began
Adams is Director of Spatial Industrial Development at the Department of Trade, Industry and Competition. He applied for the position of Chief Director and Provincial Head for the Western Cape in the Department of Water and Sanitation but was not shortlisted.
The department said he did not meet the minimum qualification requirements for the post, which required an NQF Level 7 degree in Natural Science, Environmental Science, Agriculture, Engineering, Economic Science or Hydrology. Adams has a PhD in Quality Management and Human Resource Development, a master’s degree in Human Resource Development and a National Diploma in Structural Construction.
Adams believed there was no reason to exclude him without even giving him an interview, so he took his unfair labour practice dispute to the General Public Service Sectoral Bargaining Council.
The disclosure dispute changed the case
The arbitration shifted away from the recruitment dispute when the commissioner advised the department to bring a formal Rule 30 and Rule 32 application to force Adams to disclose nine years’ worth of performance agreements and assessments from his current employer.
Adams argued those records were irrelevant because the shortlisting should have been based on comparing candidates’ CVs to the advertised criteria. Before that application could be heard, he asked for the commissioner to step aside, alleging bias and unequal treatment.
The commissioner dismissed the application, calling it conditional, baseless and an opportunistic litigation strategy.
Transcript revealed repeated interruptions
Judge Lagrange looked at the arbitration transcript and found that Adams was interrupted more than 20 times while outlining his case and about 30 times during his evidence-in-chief on the first day alone. The recording of the second day was missing, leaving no transcript of that evidence.
The judgment describes repeated instances where the department’s representatives contradicted Adams directly, challenged documents before he had finished his testimony and debated with him instead of waiting for cross-examination.
Although the commissioner sometimes told them to wait, Judge Lagrange found those interventions were not enough, writing that “a sterner response in the form of a firm rebuke was called for.”
Fair hearing became the central issue
Judge Lagrange drew a distinction between procedural rulings and the way the hearing was run, finding that disputes over evidence and disclosure could usually be addressed after the final arbitration award. The decisive issue was whether the commissioner had exercised enough control over the proceedings.
The court held that letting two legally qualified representatives repeatedly interrupt someone representing himself would make a reasonable person believe the proceedings had become one-sided.
The court set aside the recusal ruling, ordered the commissioner to step aside, and sent the dispute back to the General Public Service Sectoral Bargaining Council for a new hearing before a different commissioner within 30 days. No order as to costs was made.
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