During the 2018/2019 financial year, the Commission for Conciliation, Mediation and Arbitration (“CCMA”) received a total of 193 732 dispute referrals. Of those referrals, the CCMA had issued 16 771 arbitration awards, which equates to 16 771 opportunities for review by the Labour Court. But what does this process entail? Below, we consider the process of reviewing a CCMA award and we take a closer look at the effects that real life may have on a review application.
South African law distinguishes between the processes of appeal and review respectively. In particular, the Labour Relations Act does not provide for an appeal procedure with regards to CCMA disputes, but does provide an opportunity to have the decision of the CCMA commissioner reviewed, by focussing on the record of the proceedings. In effect, the Labour Court can consider: 1) whether the commissioner committed misconduct in relation to his duties as arbitrator; 2) whether the commissioner committed a gross irregularity; 3) whether the commissioner exceeded his/her powers; and 4) whether the arbitration award had been improperly obtained.
Should a party believe that one or more of the above grounds for review were present in their matter or award, that party may apply to the Labour Court within six weeks of the arbitration award to have the award reviewed. The review application is supported by an affidavit by the Applicant, which sets out the reasons and grounds for review. The application must be served on the other party, as well as on the CCMA offices and the commissioner who made the award. Upon receipt, the CCMA is obliged to furnish the applicant with the records of proceedings, which the applicant can rely on to substantiate the grounds for review. The Labour Court will consider whether the decision made by the commissioner is one that a reasonable commissioner would have made considering the in the same circumstances and the same evidence presented in the case. Should the court believe that the decision was reasonable, the court will uphold the original arbitration award. Should the court believe that the decision was not reasonable, the court can decide to set the award aside and send the matter back to the CCMA for a new arbitration to be held - alternatively the court can set the original award aside and replace it with the order that it deems fit.
In a recent matter of CT International Financiers (Pty) Ltd v Van Rooyen & Others, the Johannesburg Labour Court – during a review application – had to decide whether a technical flaw that existed prior to the award constituted a reviewable irregularity. In effect, the employee’s referral to the CCMA was out of time, and the employee had to request condonation prior to an arbitration being able to proceed. The parties, however, reached a settlement which led to an arbitration award incorporating their settlement. The Employer failed to pay the employee as per the settlement agreement, and opted to launch a review application to request the Labour Court to set the matter aside as the CCMA had not formally granted condonation to the employee.
In dismissing the employer’s review application, the Labour Court reiterated that the purpose of the CCMA is to attempt to resolve disputes speedily. The judge stated that the effect of the employer’s argument would be to frustrate the expedited dispute resolution process of the CCMA.
This judgment might prove to be vitally important, especially when considering the substantial delays that disputes will face as a result of the national lockdown. It further reiterates the importance of discourse between parties to attempt to reach meaningful settlements and compromises.
Written by Dawie Coetzer