Introduction
Background and outline of the research problem
Research Questions
Aims of the research
Research methodology
Appeals and reviews distinguished
Introduction
General distinction
Distinction in terms of the LRA
- Reviews
- Appeals
Distinction between review and appeal blurred?
Conclusion
Introduction
The review of arbitration awards made under the auspices of the CCMA and Bargaining Council is governed by section 145 of the LRA. The Labor Court may set aside arbitration awards made under the auspices of the CCMA and the Bargaining Council if it is satisfied that there was a deficiency in the arbitration proceedings. 55. a) the commissioner has committed misconduct in relation to the commissioner's duties as an arbitrator; or.
Misconduct
The commissioner clearly did not properly consider the material issue of possible alternative meanings of the disputed words. 17 the procedure was detrimental to one party.74 Misinterpretation of evidence was declared to be misconduct on the part of the commissioner.75.
Gross irregularities in the proceedings
- Procedural irregularities
- Latent irregularities
- Failure to apply the mind
It was also argued that this also showed bias on the part of the arbitrator. 2(1)(a).110 An award was also set aside where the commissioner's conclusions were not justifiable in the light of the evidence before her.111. This involves a gross irregularity in the conduct of the arbitration proceedings, as contemplated in s 145(2)(a)(ii) of the LRA.
Excess of power
And the resulting award is annulled not because the result is wrong, but because the commissioner committed a gross irregularity in the conduct of the arbitral proceedings.”134. The judgment was annulled if the commissioner did not take into account the fact that the employee in the dispute due to constructive dismissal did not exhaust alternative legal remedies.135 The judgment was also annulled if the commissioner did not take into account the employer's offer to return to work retroactively.136 . It was established that any declaration of jurisdiction is still subject to the review powers of the Labor Court.144.
An award has been improperly obtained
Where the jurisdiction of a tribunal depends on the existence of a particular state of affairs; it cannot confer jurisdiction on itself by wrongly determining that the conditions for the exercise of jurisdiction are met. For example, if a party to an arbitration bribes the commissioner and obtains an award in his favor, the award would have been unlawfully obtained and the commissioner would also have misbehaved himself.”147. In Lekota148, the court rejected the claim that a reward was wrongly obtained because the commissioner had accepted false evidence in a way that made him complicit.
Conclusion
The court then had to determine whether the grounds in section 145 of the LRA applied. The commissioner's order was set aside for review and replaced by a finding that the. It must be assessed whether the arbitrator committed a gross irregularity in the conduct of the procedure.
The review of private arbitration awards
Introduction
As discussed in the previous chapter, the LRA provides for the resolution of disputes arising under the LRA by adjudication or arbitration. However, employers and employees can also agree to resolve disputes arising under the LRA outside the statutory framework. However, the court found that the arbitrator's decision had been broad enough to include a finding that the supplementary agreement had been legally terminated.
Grounds of review
- Misconduct
- Gross irregularities
- Excess of power
- Award was improperly obtained
Gross procedural irregularities apply to the manner in which arbitral proceedings are managed, not to their outcome.150 An irregularity must be serious enough to prevent a party from determining its case properly and fairly.151 An award was set aside when the arbitrator completely misinterpreted the provisions of a disciplinary code he was supposed to interpret.152 In statutory arbitration proceedings, irregularities may be either patent or latent. In Telcordina, the Supreme Court had itself interpreted the contract that the arbitrator was required to interpret, preferred a different interpretation, then concluded that the arbitrator had. An award is improperly made if the parties influence the arbitrator to find in their favor by direct inducement.
Time limits
Nothing said in Sidumo means that the grounds of review in s 145 of the ACT are wiped out. In my opinion, it cannot be concluded that the commissioner did apply her mind to the meaning of the exemption.”197. A consideration of the factors that the decision maker is obliged to take into account is.
The requirement of reasonableness (the Sidumo test)
Introduction
The SCCA's first finding was that the conduct of CCMA proceedings by the commissioner should be given to employers because it is primarily the employer's function to decide on sanctions. The second finding was that CCMA arbitration proceedings constitute administrative action as defined in s 1 of the Promotion of Administrative Justice Act 200015757 and are subject to the enhanced review set out in PAJA. The court stated that, based on Article 33 of the Constitution, the commissioners are obliged to give reasonable decisions and that this obligation fulfills the reasons defined in Article 145 of the LRA.
Background
The standard is: "is the decision taken by the commissioner one that a reasonable decision-maker could not reach?"164 This is due to the change in the wording of the final Constitution. Article 33(1)165 of the final Constitution states that administrative action must be legal, reasonable and procedurally fair. First, that the commissioner failed to properly appreciate the scope of his duties under the LRA, and therefore applied the wrong test when considering whether the dismissal was a fair sanction.166 Second, that the test for rational administrative action which laid down by PAJA, applied. to review SCBA arbitration awards - that is to say that their decisions must be rationally connected with the information before them and with the reasons given by them.167 The case was then taken to the Constitutional Court which disagreed with the decision of the SCA did not agree.
PAJA or the LRA
The standard of review: Reasonableness
Reasonableness: Interpreted and applied
- Reasonableness interpreted
- Reasonableness applied
Faulty reasoning will not be reviewable if the Commissioner's decision is ultimately supported by the evidence before him. However, beyond the above dictum, there is no further discussion of the wording of the exemption and its nature in the Commissioner's award. After the audit, the labor court found that the employee's dismissal was substantively unfair because the authorized representative did not properly take the employee's personality into account.
Conclusion
He was also told that the grant had to be disclosed to his manager. Procedural fairness requires that the commissioner apply his opinion to the issues that are material to the determination of the dispute. E Fergus' The distinction between appeals and reviews - Defining the limits of the Labor Court's power of review ILJ 1556.
The Herholdt decision
Introduction
The SKK recently issued a decision where it had to determine whether the Labor Courts have unfairly relaxed the standards for review. The LAC decision of Herholdt was considered to have settled this debate by holding that there are two forms of unreasonableness. SKK concluded that the Labor Courts have softened the standards for review and that the assertion that there are two forms of.
Background
- Facts
- The CCMA
- The Labour Court
The Commissioner found that Nedbank had failed to prove that Herholdt acted dishonestly, that he knew he had a conflict of interest and that he had deliberately failed to disclose his benefits in relation to Nedbank's conflict of interest policy. In the commissioner's view, neither Herholdt nor Williamson fully appreciated that there was a conflict of interest. According to the opinion of the Labor Court, this finding was a clear indication that the commissioner did not understand the policy or simply did not take it into account.221 The Labor Court found that Herholdt's version that he only understood that there was a conflict of interest during cross-examination fails.
The Labour Appeal Court
The LAC disagreed with this submission mainly because the weight of authority favors greater scrutiny and section 145(2) of the LRA expressly permits the review of awards on the basis of irregularity. Where a commissioner fails to take material facts into account, this will constitute a gross irregularity in the conduct of the arbitration proceedings because the commissioner would have unreasonably failed to carry out his or her mandate and thereby prevented the aggrieved party from case fully and reasonably determined.”227. The scale and extent of latent irregularities in the award leave no doubt that there was not a fair trial of the issues.
The Supreme Court of Appeal
A review of a KVBA award is admissible if the defect in the proceedings falls within one of the grounds in s 145(2)(a) of the LRA. For a defect in the course of the proceedings to amount to a gross irregularity as contemplated by s 145(2)(a)(ii), the arbitrator must have misunderstood the nature of the investigation or to an unreasonable result came. The gross irregularity is not an independent ground offended by or standing independently of the Sidumo test.
Conclusion
Since Sidumo, the employment tribunals have made significant progress in interpreting and applying the Sidumo test and the grounds for review set out in section 145(2) of the LRA. CCMA arbitration awards are subject to review under the review referred to in section 145 of the LRA, and furthermore on the grounds of unreasonableness. Before the SCA's recent decision in Herholdt, the position of the Employment Tribunals was that there are two broad types of assessments, namely outcome-based assessments and process-related assessments.
Conclusion
Conclusion
To determine whether the SCA's recent decision in Herholdt has settled the debate surrounding whether Article 145 provides for both a results-based and a procedural review. In terms of section 145 of the LRA, a person may apply to the Employment Tribunal to set aside an award of the CCMA on one or more of the grounds set out in that section. Arbitrators are required to make reasonable decisions, and the obligation to do so is contained in Article 145 of the LRA.
