The Labour Relations Act 66 of 1995 (“LRA”) does not make provision for an award made by the Commission for Conciliation, Mediation and Arbitration (“CCMA”) to be appealed by an unsuccessful party. The reason being that an arbitration award issued by the Commissioner presiding over the arbitration is considered to be final and binding. However, Section 145 of the LRA does afford an aggrieved litigant the right to launch review proceedings whereby such a party may apply to the Labour Court for a review of an arbitral award or order on the basis of an alleged defect with a Commissioner’s reasoning in the relevant award or order.

The party who alleges such a defect in the arbitration proceedings, must apply to the Labour Court to set aside the award within six weeks of the award being served on this party, subject to certain exclusions as dealt with in the LRA. The time limit is of the utmost importance as review applications, by their very nature, are considered as urgent and the legislature, when promulgating the LRA, had intended that review applications be dealt with on an urgent basis. If a party fails to bring the review application within the compulsory six-week period, that party is obliged to bring a further application for condonation of its non-compliance.

In the case of Rustenburg Local Municipality v South African Local Government Bargaining Council and Others [1], the Labour Court emphasised that arbitration awards are final and binding and that it is trite that arbitration awards remain executable as against the unsuccessful party, despite a pending review. The court held that the onus to seek a stay of execution proceedings in anticipation of the hearing of a review application lies with the applicant. If the applicant is successful in an application for the stay of execution proceedings, such proceedings will be stayed until  the review application has been argued and decided on.

Section 145 of the LRA states that the institution of review proceedings does not suspend the operation of an arbitration award unless the applicant furnishes security to the satisfaction of the court, or successfully brings an application to stay such proceedings as mentioned above.

Not an Appeal

The Constitutional Court in the case of Sidumo & Another v Rustenburg Platinum Mines Ltd & Others[2], confirmed the test for the review of a Commissioner’s arbitration award as follows:

“Is the decision reached by the Commissioner one that a reasonable decision-maker could not reach? If so, it is reviewable. If not, it is not.”

The Labour Court has exclusive jurisdiction to review CCMA awards, but the review application should not be seen as an appeal against the decision because arbitration awards are not subject to an appeal. Therefore, a review is not related to the merits of the matter but, rather, to the Commissioner’s conduct in reaching the decision being reviewed.

The scope of the review is confined to how the arbitrator arrived at the specific decision and in making the application for review, the party is alleging there has been a defect in the proceedings.

The CCMA Rules for the conduct of proceedings, read with the relevant provisions of the LRA, holds that a defect would include instances where:

– the Commissioner committed misconduct in relation to their duties as arbitrator,

– the Commissioner committed a gross irregularity in the arbitration proceedings,

– the Commissioner exceeded their powers and;

–  the award was improperly obtained.

Rational Objective Test

The courts stated in Goldfields Mining SA [Py] Limited v CCMA[3] that there are five questions to ask when looking at the reviewability of the arbitral award. These are as follows:

  1. Did the Commissioner give the parties full opportunity to have their say?
  2. Did the arbitrator identify the dispute he was required to arbitrate?
  3. Did the arbitrator understand the nature of the dispute?
  4. Did the arbitrator deal with the substantial issues of the dispute?
  5. Did the arbitrator reach a decision that another decision maker could reasonably have reached?

Section 158(1)(g) of the LRA has previously also empowered the Labour Court to review arbitral awards. This section allowed for review procedures on a broader scale, but this did not nullify the effect of the Section 145 review procedures. This position was confirmed in the Carephone (Pty) Limited v Marcus NO & Others[4] judgment where the Labour Court ultimately held that a review of a CCMA arbitration award is limited to the grounds as set out in Section 145 of the LRA.

Conclusion

There is recourse for a party who wants to have their CCMA award reviewed and set aside, even though such award is final and binding. The party wishing to do so must ensure that it has a proper basis for review that falls within the grounds as envisioned by Section 145 of the LRA, and the courts’ expansion of the considerations relevant to the review enquiry in terms of this section, and must ensure that the required time limits are strictly complied with.

It is recommended to consult with an attorney, if you want to take a matter on review. The main question that needs to be answered is whether the decision reached by the Commissioner is one that a reasonable decision-maker could not reach.

 

Enquiries can be addressed to either of this article’s authors: Peter Turner or Lerato Mlambo