In terms of the Labour Relations Act 66 of 1995 (LRA), an arbitration award issued by a Commissioner is final and binding and may be enforced as if it were an order of the Labour Court.

Arbitration awards are not subject to appeal. They are, however, subject to review in certain limited circumstances. The court has distinguished between the two processes in Tao Ying Industry (Pty) Ltd v Pooe NO & Others [2007] SCA 54 (RSA), by stating that the focus of an appeal is whether the decision was right, whereas the focus of a review, is on how the arbitrator arrived at the conclusion.  Any party to a dispute can take the Commissioner’s conduct on review if he/she believes that the Commissioner has acted incorrectly. In terms of the LRA, any party to a dispute who alleges a defect in arbitration proceedings may apply to the Labour Court, within six weeks after service of the award for an order reviewing and setting aside the award.

A defect means the following:

  1. That the Commissioner committed misconduct in relation to his/her arbitration duties;
  2. That the Commissioner committed a gross irregularity in the conduct of the arbitration proceedings;
  3. That the Commissioner exceeded his or her powers;
  4. That the award was improperly obtained.

A Commissioner’s conduct could be regarded being as defective in the following circumstances:

  1. Acting in bad faith or in a biased manner and being grossly negligent;
  2. Taking into account evidence that was not put to him or her and by refusing to allow valid and relevant evidence;
  3. By unduly assisting one party with his or her case;
  4. Making an award not based on evidence or completely misunderstanding the evidence;
  5. By ignoring statutory requirements or legal principles;
  6. Failing to apply his or her mind to the facts of the matter;
  7. Making an award induced by improper factors such a bribe or a favour.

In the landmark case of Sidumo & Another v Rustenburg Platinum Mines Ltd & Others (2007) 28 ILJ 2405 (CC), the Constitutional Court held that the test for the review of a Commissioner’s arbitration awards is as follows:

“Is the decision reached by the Commissioner one that a reasonable decision-maker could not reach? If so, it is reviewable. If not, it is not.”

In conclusion, there is recourse for a party to a dispute who is not satisfied with an arbitration award, as long as the party has good and valid reasons to take the award on review.  Launching a review application in the Labour Court could be incredibly expensive and parties should consult with a labour law expert before doing so.

Article by: Ruaan Heunis

CEO Dispute Resolution Official – East London