1. Introduction

Once an arbitration hearing has been finalised at the Commission for Conciliation, Mediation and Arbitration (CCMA) or relevant Bargaining Council, the Commissioner will issue an arbitration award. The arbitration award will set out the Commissioners finding and the brief reasons for the finding. In most cases, the employer will be aggrieved by an unsuccessful award if the employer believes that a fair procedure was followed in dismissing an employee and where the reason for the dismissal was reasonable and justified under the circumstances.

Unfortunately, employers cannot appeal the arbitration award of the Commissioner. However, the employer may take the award on review in the Labour Court. The process of bringing a review application is complex, and there are strict Labour Court rules and time periods to comply with. For educational purposes, the author will be discussing the practical guidelines which need to be taken into consideration by the aggrieved party when deciding to take an award or ruling on review in the Labour Court.

2. Time limits to review the arbitration award

Section 145 of the Labour Relations Act (LRA) states that review proceedings must be instituted within six (6) weeks of receiving the award or ruling. The reason, therefore, is that a review application is seen as having the same nature as an urgent application and the legislature intended that these applications should also be dealt with urgently.

3. Who can institute a review application

An aggrieved party may apply to the Labour Court in terms of section 145 of the LRA to have an award or ruling set aside based on an alleged defect with that award.

Review applications can only be instituted by a party listed in the award or ruling or his or her representative. Section 145 of the Labour Relations Act (LRA) as amended reads as follows:

“(1) An arbitration award or ruling, other than an arbitration award or ruling made in terms of section 86(9), (10) or (11) or an arbitration award that has been made an order of the Labour Court in terms of section 158(1)(c), may be reviewed only on the grounds—

(a) that the commissioner who conducted the arbitration proceedings—

(i) committed misconduct in relation to his or her duties;

(ii) committed a gross irregularity in the conduct of the proceedings; or (iii) exceeded his or her powers; or

(b) that an award has been improperly obtained.”

Misconduct by the Commissioner

Misconduct by the commissioner is one of the grounds for review of a CCMA award. This ground of review is available where the commissioner acted improperly or committed misconduct. Examples of misconduct include bias, lack of independence, and failure to properly consider the evidence presented by the parties.

In the case of Pikitup (SOC) Limited v SAMWU and Others (JA82/13) [2013] ZALAC 33; [2014] 3 BLLR 217 (LAC); (2014) 35 ILJ 983 (LAC) (6 December 2013), the Labour Court held that misconduct by the commissioner must be such that it resulted in a grossly irregular or unfair process that prejudiced the party seeking review. The court also held that the misconduct must be of such a nature that it could not have been remedied by any other means.

Gross Irregularity in the Proceedings

Gross irregularity in the proceedings is another ground for review of a CCMA award. This ground of review is available where there was a serious irregularity in the proceedings that affected the outcome of the award.

In general, gross irregularity in the proceedings may refer to serious flaws or irregularities in the conduct of the arbitration that substantially affect the rights of one or more parties. Examples of gross irregularity in the proceedings may include the denial of a party's right to be heard, the failure to disclose conflicts of interest by an arbitrator, or the use of corrupt practices to influence the outcome of the arbitration.

Mistake in Law or Fact

A mistake in law or fact is another ground for review of a CCMA award. This ground of review is available where the commissioner made an error of law or fact that affected the outcome of the award. Examples of mistakes include misinterpretation of the law, reliance on irrelevant evidence, and failure to properly consider relevant evidence.

This principle is made in the case of Fidelity Guards Holdings (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (J1330/98) [2000] ZALC 45 (14 June 2000), the Labour Court held that a mistake of law by the commissioner is only reviewable if it is a material error that affected the outcome of the award. The court also held that a mistake of fact is only reviewable if it is a clear error that is based on no evidence or on evidence that is contradicted by other evidence.

4. The effect of the review proceedings

The aggrieved party needs to note that review applications in the Labour Court can be a costly and timely exercise. These applications may take any period between two (2) to four (4) years to be concluded. The notice to bring a review application alone does not stay the enforcement of the award unless security is furnished by the party applying for the review. In the case of an award for reinstatement or re-employment, the security to the provided must be equivalent to twenty-four (24) months of remuneration. In the case of a compensation award, the security must be equivalent to the amount of compensation awarded. Should an employer wish to have an unsuccessful arbitration award set aside, the employer will need to determine whether there are any potential grounds for review.

5. Conclusion

In conclusion, the review process in the CCMA is limited to the grounds set out in the Labour Relations Act 66 of 1995. The courts have developed case law that clarifies the standard of review and the grounds for setting aside a CCMA award. It is important for parties to understand these grounds and to ensure that they have a proper understanding of the CCMA dispute resolution process before agreeing to refer their disputes to the CCMA.

Disclaimer: the legal opinion expressed on this article does not constitute legal advice. Should you wish to get further information or legal advice, kindly contact Hlapane Attorneys Inc for assistance.