Upon the conclusion of an arbitration hearing at the Commission for Conciliation, Mediation, and Arbitration (CCMA) or the appropriate negotiating council, the commissioner will issue an arbitration award including their conclusion and briefly outlining how they arrived at that conclusion. Unfortunately for the unsuccessful side, an arbitration award is final and binding and cannot be appealed. This means that a losing party is not given an opportunity to re-argue the merits of their case in the hopes of achieving a different conclusion from a new adjudicator.
However, the Labour Relations Act 66 of 1995 (LRA) does permit parties to request a review of an arbitration award by the Labour Court on specific grounds. A review can be distinguished from an appeal because it is less concerned with the substance of the case(merits) and more concerned with the process that led to the conclusion. In order to help parties decide wisely whether to apply for a review, the grounds for review that are open to an unsuccessful party as well as the criteria the Labour Court uses to determine whether an arbitration award should be reviewed and set aside are discussed below.
Section 145 of the LRA governs the review of arbitration awards and states that any party to a dispute who alleges a defect in any arbitration proceedings may apply to the Labour Court for an order setting aside the arbitration award within 6 weeks after obtaining the decision. However, should one fail to bring this application within the required time frame, he or she may apply for condonation. The application must show sufficient cause. This requires a party to give a full explanation for the non-compliance with the Labour Court Rules and time constraints.
The grounds for review include but are not limited to:
When hearing a review application, the Labour Court employs certain tests to evaluate whether the error is serious enough to warrant the award being overturned. These are the reasonableness and correctness tests.
The reasonableness test was developed in the case of Sidumo and another v Rustenburg Platinum Mines Ltd. and Others [2007] 28 ILJ 2405 (CC), and it is used when the factual conclusions of the commissioner are challenged, such as when a serious irregularity in the way that the proceedings were conducted is alleged. This test asks if the commissioner's decision is one that another reasonable commissioner would not have made. If so, the arbitration decision will be reviewed and dismissed. As a result, it is not enough to merely claim that one of the aforementioned defect exists. One must also prove that the commissioner's judgment was unreasonable as a result of the defect.
The correctness test as cited in SARPA v SA Rugby (Pty) Ltd and Others; SA Rugby (Pty) Ltd v SARPU [2008] 9 BLLR 845 (LAC), is the test that the Labour Court applies when the commissioner's legal or jurisdictional findings are challenged, such as when it is alleged that the commissioner exceeded their powers by deciding a dispute over which they lacked jurisdiction. This test asks if the commissioner's decision was correct. The Labour Court will consider objective facts and legal principles to evaluate whether the commissioner's conclusion was correct or incorrect.
The existence of any prospective grounds for review must be established by a party before applying for review of an arbitration ruling. The reasons for review might sometimes overlap, making it challenging to choose which test to apply, and for a party to assess their chances of success with a review application. The procedure for submitting a review application is likewise fairly difficult, and there are strict Labour Court Rules and time constraints to follow. To guarantee a smooth procedure and offer yourself the best chance of success, it is advised that you engage an attorney to assist you with your review application.