The test for reviewing and setting aside an Award of the Commission for Conciliation Mediation Arbitration (CCMA) or that of a National Bargaining Council is whether the decision reached by the Commissioner/Arbitrator is one that no other reasonable decision-maker could have reached. This proposition has been articulated so often that it is now trite. Nevertheless, this test has been misapplied many times and presiding officers responsible for reviewing cases are said to have yielded to the seductive power of a lucid argument and succumbed to the luxury of indulging in that temptation reserved only for the Labour Court of Appeal (LAC).

This is one such instance of the Labour Court’s misdirection, having been misled into treating a case for Review as if it were an Appeal, which was thereafter lambasted by the LAC and reported as Makuleni v Standard Bank of SA (Pty) Ltd and Others [2023] 44 ILJ 1005 (LAC). Makuleni, a branch manager, was dismissed for misconduct. She was found guilty of communicating with her subordinates in a manner that was “disrespectful, offensive and childish”; shouting and directing “inappropriate words (vulgar language)” at her subordinates in front of colleagues and customers; and failing to “motivate [the] team and to value the ideas raised” by them. Makuleni referred an alleged unfair dismissal dispute to the CCMA. The Arbitrator found that the employer’s witnesses were not credible or reliable and found that Makuleni had been unfairly dismissed and ordered her reinstatement. The employer, unhappy with the decision, took the matter on Review to the Labour Court, where the Arbitrator’s decision was reviewed and set aside. Makuleni, unhappy with that outcome, took the matter on Appeal. Firstly, the LAC set out the essentials of the Review test by looking at the renowned dictum in Head of Department of Education v Mofokeng & Others (2015) 36 ILJ 2802 (LAC), wherein it was stated that:

“…flaws in the reasoning of the Arbitrator, evidenced in the failure to apply the mind, reliance on irrelevant considerations or the ignoring of material factors etc., must be assessed with the purpose of establishing whether the arbitrator has undertaken the wrong enquiry, undertaken the enquiry in the wrong manner or arrived at an unreasonable result. Lapses in unlawfulness, latent or patent irregularities, and instances of dialectical unreasonableness should be of such an order (singularly or cumulatively) as to result in a misconceived enquiry or a decision which no reasonable decision-maker could reach on all material that was before him or her… The Arbitrator, however, must be shown to have diverted from the correct path in the conduct of the Arbitration and, as a result, failed to address the question raised for determination.”

The LAC digesting and paraphrasing the remarks of the dictum has stated that the Court asked to Review the decision of a Commissioner “must not yield to the seductive power of a lucid argument that the result could be different.” Further pointing out that what is desirous is “…a fair reading of the award, in the context of the body of evidence adduced and an even-handed assessment of whether such conclusions are untenable. Only if the conclusion is untenable is a review and setting aside warranted.”

The LAC found that the Court a quo had failed to recognise that, with the available (albeit often incoherent and disorganised) evidence, the Arbitrator had reached a reasonable decision, in that the employer had failed to discharge the onus to show that the dismissal was fair. The LAC elucidated that proceedings in the CCMA are meant to be simple and expeditious. The general provisions for Arbitration proceedings require that a Commissioner must conduct Arbitration proceedings in a manner that is appropriate to determine the matter “quickly and fairly … with the minimum of legal formalities”. As the LAC observed, “[the] degree of robustness which characterises the reality of CCMA Arbitrations is exactly the rationale for subjecting them to a Review and not an Appeal. The Courts must be cautious not to undermine the legislative intent.

In conclusion, the crux of the LAC findings reaffirmed that Reviews are not there simply for the taking. For the Review of Arbitration Award, the result of the Award had to have been so egregious that no other reasonable decision-maker could reach such a result. The threshold to meet that test is extremely high. The test is not that the Arbitrator came to an incorrect decision – this is the basis for an Appeal.

Essentially, the test for Review requires that the Arbitrator’s decision must be a decision that no other reasonable decision-maker could reach on all the material that was before them.

Hemanth Haricharan

Dispute Resolution Official at Consolidated Employers’ Organisation (CEO SA)