A Commission for Conciliation, Mediation and Arbitration (CCMA) arbitration award is "final and binding" and there is no right of appeal against an arbitration award.
But in reality when matters are referred to the CCMA, arbitration awards are not always rational. Some commissioners also are not beyond committing misconduct when carrying out their duties as arbitrators, or gross irregularities when conducting arbitration proceedings.
Therefore the Labour Relations Act (LRA) makes provision for the review of arbitration awards by the Labour Court.
Section 145(2) of the LRA sets out the grounds for review as follows:
l The commissioner committed misconduct in relation to his duties as an arbitrator; and/or
l The commissioner committed a gross irregularity in the conduct of the arbitration proceedings; and/or
l The commissioner exceeded his powers.
The following are practical examples of where an arbitration award would stand to be reviewed by the Labour Court:
l The commissioner was clearly biased; l The commissioner did not allow the cross-examination of witnesses;
l The commissioner adjudicated a dispute that should have been referred to the Labour Court.
An arbitration award also stands to be reviewed by the Labour Court if the conclusion reached by the commissioner does not have a rational connection to the evidence presented to the commissioner. Since the matter of Carephone (Pty) Ltd v Marcus & Other (1998) 19 ILJ 1425 (LAC) , the Labour Court has used what is called the "justifiability" or "rationality" test to determine whether an arbitration award will be i reviewed or not.
The justifiability or rationality test enables the Labour Court to examine the reasoning of the commissioner when reaching his/her conclusion and asks if the arbitration award is "justifiable in relation to the reasons given for it". The Labour Court is required to assess the commissioner's evaluation of the evidence presented, the inferences drawn from the evidence, and the manner in which the commissioner applied the law to the evidence.
A review application must be made within six weeks of the date that the applicant was served with the award. But late review applications might be condoned if good cause is shown.
lBy Lavery Modise, director at Routledge Modise Attorneys. He was assisted by Sian Wilkins, candidate attorney at Routledge Modise Attorneys