When finding your way through the often-intricate maze of labour disputes, arbitration awards can sometimes leave one or both parties feeling dissatisfied. In some cases, the decision rendered by the commissioner might be perceived as unfair, whether it results in the reinstatement of a troublesome employee or in a decision that the employer firmly believes was reached in strict accordance with all legal requirements.

Given that a commissioner’s award is both binding and enforceable, the sole option available to any party dissatisfied with the outcome is to file a review application with the Labour Court. This process, while designed to ensure fairness, is also laden with its own set of challenges and intricacies.

The Role of Reasonableness in Review Applications

One of the cornerstone principles in this arena is the standard of reasonableness, which was emphatically established in Sidumo and Another vs Rustenburg Platinum Mines (Ltd) and Others [2007]. In this precedent case, the court elucidated that Section 145 of the Labour Relations Act (LRA) must now be interpreted in light of the constitutional mandate for administrative fairness. In practical terms, this means that the review process focuses on determining whether the decision reached by the commissioner was one that a reasonable decision-maker could have arrived at, based on the evidence presented. This approach not only safeguards the constitutional right to fair labour practices but also reinforces the necessity for any administrative action to be both lawful and reasonable.

The Commissioner’s Mandate and Grounds for Review

At the heart of any arbitration process is the role of the commissioner, whose primary function is to assess the fairness of a dismissal. The commissioner is expected to approach every case with complete impartiality, considering all of the circumstances that surround the dispute, and is under no obligation to automatically defer to the employer’s perspective. However, it is essential to note that there are specific circumstances under which a commissioner’s decision may be deemed defective. According to Section 145(2) of the LRA, several grounds may be cited for a review application, including:

  • Commissioner Misconduct: Even the mere reasonable suspicion of bias, for instance, if a commissioner is seen to be aggressively interrogating a witness in a manner that suggests favouritism, may serve as a valid basis for review. In such cases, it is not necessary for the applicant to prove outright bias; the suspicion itself can be sufficient to raise questions about the integrity of the proceedings.
  • Gross Procedural Irregularities: The review process also scrutinises the commissioner’s handling of the arbitration. If evidence indicates that key information was either improperly analysed or outright ignored, this may constitute a gross irregularity. Such errors in procedure can potentially undermine the fairness of the decision, warranting further review.
  • Exceeding Powers: There are instances when a commissioner may be found to have exceeded their statutory powers by operating outside the confines of the LRA. For example, if a commissioner misconstrues or misapplies evidence in a way that falls outside accepted legal frameworks, this overreach may provide grounds for a review.
  • Undue Influence: Lastly, if it is found that one party exerted undue influence over the proceedings, thereby improperly affecting the outcome, the resulting award may be challenged on the basis that it was improperly obtained.

Evaluating the Entirety of the Evidence

Commissioners are expected to conduct the arbitration in a manner that minimises unnecessary legal formalities while ensuring that both parties have ample opportunity to present their cases in full. They are required to identify and understand the dispute comprehensively, focusing on the substantive merits of the case at hand. Suppose a commissioner fails to adhere to these expectations. In that case, it becomes important to ask whether another decision-maker, operating under the same set of evidence, would have reached an identical conclusion. This is a critical question, as it underscores the fundamental fairness of the process. Even if there are irregularities in the commissioner’s conduct, if a reasonable decision-maker would have nonetheless arrived at the same result, the grounds for a successful review application may be significantly weakened.

Practical and Financial Implications

It is essential to acknowledge that pursuing a review application is not a decision to be taken lightly. The process can be both time-consuming and financially draining. The expenses incurred during a review, including potential legal fees and other associated costs, can quickly add up. Furthermore, even if there appears to be substantive evidence of procedural or administrative misconduct on the part of the commissioner, convincing a judge of this misconduct can be a challenging endeavour. In addition, the party initiating the review may find themselves liable for the legal costs incurred by the opposing party if the review is unsuccessful. For these reasons, it is prudent for any party considering a review application to meticulously evaluate whether the benefits of challenging the award outweigh the potential risks and costs.

Final Thoughts and Recommendations

While arbitration awards are intended to resolve disputes in a fair and expedient manner, there are situations in which a party may find the outcome unsatisfactory. Before embarking on the review process, it is advisable to thoroughly evaluate both the procedural and substantive aspects of the case. Key considerations include whether there has been any misconduct, gross irregularity, or undue influence during the arbitration process. Moreover, parties should consider whether the award, even if reached through questionable means, would have been the likely outcome had a different decision-maker been involved.

Given the complex nature of review applications and the significant financial and procedural implications involved, it is highly recommended that parties consult with experienced labour law professionals. Such consultations can provide valuable guidance, ensuring that any decision to pursue a review is well-informed and strategically sound.

By taking a measured and informed approach, employers and employees alike can better deal with the challenging process of reviewing arbitration awards, ensuring that justice is served in a manner that upholds the principles of fairness and administrative integrity.

Article By Christie De Villiers

Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)