Representatives in the CCMA and relevant bargaining councils often raise various issues before a Commissioner, such as postponement requests, decisions on legal representation, or jurisdictional matters.

When a Commissioner makes a decision on these issues, representatives need to understand the reasoning behind it to properly advise their members or explore alternative options such as taking the decision or ruling on review. Fortunately, parties are entitled to an explanation for the Commissioner’s decisions, not only for awards but also for rulings, including those related to jurisdiction and legal representation.

To address this, it’s essential first to consider Section 138(7)(a) of the Labour Relations Act (LRA), which states:

“Within 14 days of the conclusion of the arbitration proceedings, a Commissioner must issue an arbitration award with brief reasons, signed by that Commissioner; (b) the Commission must serve a copy of that award on each party to the dispute or the person who represented a party in the arbitration proceedings.”

Also, when you look at National Union of Mineworkers and Another v Rustenburg Platinum Mine (Mogalakwena Section) and Others (JA43/2013) [2014] ZALAC 62; [2015] 1 BLLR 77 (LAC), the Judge stated the following: ”Commissioners on the other hand must be mindful of the fact that their awards must be well thought through because their reasons are important to achieve and sustain transparency, accountability and openness in the proceedings before them. A well-reasoned award may convince the person against whom it is made that a review application would not be worthwhile. In contrast, a badly reasoned one will have the opposite effect in all probability.”

While this section and case law clearly require reasons to be provided for arbitration awards, they do not explicitly mention rulings on other issues, such as jurisdiction or postponements. This raises the question: Are parties entitled to reasons for rulings as well?

The answer can be found in Afrox Ltd v Laka and others [1999] 5 BLLR 467 (LC). In short, it was held that everyone affected by administrative action has the right to be given written reasons.

The Judge stated, “The question that still remains then in relation to the first respondent’s ruling on legal representation is what I must make of the fact that the first respondent has not furnished reasons for his ruling despite the fact that he was obliged to give reasons for such a ruling. That he was so obliged can simply not be in dispute in the light of the provisions of Section 138(7) of the Act as well as the provisions of Articles 33(1) and (2) of the Constitution. Section 33(1) says everyone has the right to administrative action that is lawful, reasonable and procedurally fair. Article 33(2) says: Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons”.

It was further held in Ndokweni v Game Stores and others [2001] 6 BLLR 643 (LC) that a reference can be made in the absence of written reasons, i.e. that no adequate reasons exist. The Judge also stated that “Commissioners should provide such reasons as would demonstrate that they applied their minds to the facts of the case. The reasons should also inform the parties briefly why they were successful or not successful.”

Although Section 138(7)(a) does not explicitly require reasons to be provided for rulings, case law suggests that administrative bodies and presiding officers are expected to give reasons for their decisions.

In conclusion, the importance of Commissioners providing clear and reasoned rulings cannot be overstated. Reasoned decisions not only enhance the credibility and transparency of the decision-making process but also ensure fairness and accountability. They provide all parties involved with a clear understanding of the basis for the ruling, which is essential for upholding trust in the justice system. Furthermore, well-articulated reasons serve as a foundation for consistency and make it easier for higher courts to review and correct any mistakes, which helps improve the fairness and reliability of the system.

Article By Kenneth Lennox & Arlene Jacobs

Dispute Resolution Official & Senior Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)