Arbitration awards are generally considered to be final and binding upon parties. There is no appeal process regarding arbitration awards, as is the case in criminal and civil courts. However, the Labour Relations Act 66 of 1995 provides an avenue for an aggrieved party to take a Commissioner’s decision at arbitration on review to the Labour Court.
Section 145 of the Labour Relations Act deals specifically with the aspect of taking arbitration awards on review and sets out the grounds on which a review should be based. In terms of Section 145 of the Labour Relations Act, a party who alleges that there is a defect in the arbitration proceedings may apply to the Labour Court for an order to set aside the arbitration award. It must also be noted that this application to the Labour Court must be carried out within 6 (six) weeks of the date on which the party was served with the arbitration award. Should a party apply to the Labour Court after the 6 (six) week period, then such a party would have to apply for condonation and show good cause as to why the application was made outside the designated time period allowed.
Subsection 2 of Section 145 sets out what a defect would be, more specifically that a Commissioner:
- Committed misconduct in relation to the duties of the Commissioner as an arbitrator.
- Committed a gross irregularity in the conduct of the arbitration proceedings or;
- Exceeded the Commissioner’s powers.
The last defect would be that an award was improperly obtained.
The Labour Court may stay the enforcement of the award pending its decision on the review application. If the award is set aside, the Labour Court may determine the dispute in a manner it considers appropriate. The Court may also make any appropriate order about the procedures to be followed to determine the dispute.
To refer a dispute to the Labour Court, the referring party would first have to apply to the registrar of the Labour Court for a case number and indicate that the application is a review application. The next step would be that a party would have to draft, serve and file a document called a “Statement of Claim”, which sets out the material facts which will be relied on and the legal issues to be determined. Both the application and statement of claim forms can be found in the links below. It is advised that parties seek legal advice before approaching the Labour Court, as cost orders may be awarded against the unsuccessful party. Should you require any more information, kindly contact your nearest CEO office for assistance.
Article by: Krian Rathinam
Dispute Resolution Official – CEO Durban