In terms of section 145 of the Labour Relations Act, an award issued by the commissioner is final and binding. The effect of this is that the party against whom the award has been made cannot appeal against the award.
The Labour Relations Act does not make provision for the award made at the Commission for Conciliation, Mediation and Arbitration (CCMA) to be challenged on the basis that it is wrong.
But the act allows for the award to be challenged on two grounds only.
The first ground is in terms of section 145 of the act, which allows the award made at the CCMA be reviewed on the basis that it is defective.
The second ground is that it is terms of section 15(1) (g), which allows the party to challenge the award on any ground permissible in law.
The party challenging the award in terms of section 145 has the duty to prove that the award is defective.
The award can only be defective if the commissioner committed misconduct in relation to his duties as the arbitrator, committed a gross irregularity in the conduct of the arbitration proceedings or exceeded his power as a commissioner or that an award has been improperly obtained.
If anyone of those can be found to be existing, the court may be approached by a party against whom the award has been made, to have the award reviewed and set aside.
The court may make an order that replaces the award or set aside the award and that it be referred back to the CCMA only to be heard by a different commissioner. If a party to a dispute cannot find any defect on the award, that is not the end of the road.
Section 158(1)(g) allows for the review on any ground permissible in law. As a result of this section the award may be challenged on the basis that the reason for the decision does not justify the finding.
In light of the recent decision by the supreme court of appeal in the matter of Rustenburg Platinum Mines v the CCMA and others, there is another ground which has been added by the court by declaring that the awards of the CCMA are administrative action and that Promotion of Administrative Justice Act applies. This opens a new door for a party who wants to review an award.
It is therefore advisable that a party who wants to have the CCMA award reviewed and set aside by the court must make a proper choice as to which ground the review is based on.