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, we will be discussing the practical guidelines which need to be taken into consideration by the employer when deciding to take an award or ruling on review in the Labour Court.
- Time limits to review the arbitration award:
Section 145 of the Labour Relations Act (LRA) states that review proceedings must be initiated 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.
- Who can institute a review application?
Any party to the dispute can apply for the Commissioner’s award to be taken on review if they believe that the Commissioner has acted irregularly or whether the decision reached by the Commissioner is one that a reasonable decision-maker could not reach. Review applications can only be instituted by a party listed in the award or ruling or a representative as defined in Section 161 of the LRA.
- The review application procedure:
It is important to note that the intention of a review application is not to present new evidence or facts in the dispute but rather to set out the grounds on which the referring party relies to have the award or ruling reviewed successfully. Review applications are initiated by means of a notice of motion, supported by a founding affidavit. The Labour Court must be approached (not the CCMA or Bargaining Council), and a case number must be obtained from the Registrar of the Labour Court. The application must be served on all parties, including the CCMA or Bargaining Council and the Labour Court. Once the application is served on the CCMA or Bargaining Council, the applicable forum must forward the record of proceedings to the Labour Court within ten (10) court days. The party seeking the review of an award or ruling must then apply for a court date within six (6) months of applying for a review. The other party has the right to oppose the review application.
- The effect of the review proceedings:
Employers need 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 be 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.
In conclusion, launching a review application in the Labour Court could be incredibly expensive and time-consuming; therefore, it is advisable for employers to consult with a labour law expert when considering the possibility of a review application.
Article By: Tiaan Visagie
Senior Dispute Resolution Official – CEO Pretoria