8.6.2 Labour Court Review mm [1] with steps

Mere som dette

Post-Implementation Review

af Mindomo Team

Civics and citizenship

af Quinn Fatai

TODOs 253

af Gary Sibbitts

Airbnb

af andrea mondragon

Labour Law cases decided in the South African Courts (Highlights and updated 1997 to December 2021 [Copyright: Marius Scheepers/8.6.2])

Labour Court Review.

Review

security

J1535/21

Afgri Poultry (Pty) Ltd t/a Daybreak Farms v Seruwe (J1535/21) [2021] ZALCJHB 458 (17 December 2021)

[58] In City of Johannesburg v SAMWU obo Monareny and another[(2019) 40 ILJ (LAC) at para 7 -9.] the LAC considered the interpretation and application of section 145(3), (7) and (8) of the LRA and held that:The Labour Court has a discretionary power under s 145(3) of the LRA to stay the enforcement of an arbitration award pending its decision in the review application. It may stay the enforcement of an arbitration award pending finalisation of a review application against the award with or without conditions. It may in terms of s 145(8) of the LRA dispense with the requirement of furnishing security. Properly construed, s 145(3) read with s 145(7) and (8) should be interpreted to mean that where an applicant in a review application furnishes security to the Labour Court in accordance with s 145(8) of the LRA, the operation of the arbitration award is automatically suspended pending its decision in the review application. In other words, the employer need not make an application in terms of s 145(3) of the LRA to stay the enforcement of the arbitration award pending the finalisation of the review application.However, should the employer wish to be absolved from providing security or to provide security in an amount less than the threshold in subsection (8)(a) and (b), then it is required to make an application to the Labour Court, in terms of s 145(3), for the stay of the enforcement of the arbitration award pending its decision in the review application. The employer must make out a proper case for the stay as well as for the provision of security in accordance with s 145(8) to be dispensed with or reduced.The words unless the Labour Court directs otherwise in s 145(8) of the LRA must be construed broadly to mean that the Labour Court is afforded a discretion to either: (a) exempt the employer from paying security on the stay of the enforcement of an arbitration award pending its decision on review or (b) reduce the quantum of security to be furnished by the employer to an amount below the threshold in s 145(8)(a) and (b)of the LRA.[59] The LAC further held that:Before the Labour Court exercises its discretion under s 145(8), the employer seeking to dispense with the requirement to provide security for the suspension of the enforcement of the arbitration award, must show cause for why it should not do so.

[59] The LAC further held that:Before the Labour Court exercises its discretion under s 145(8), the employer seeking to dispense with the requirement to provide security for the suspension of the enforcement of the arbitration award, must show cause for why it should not do so.In Rustenburg Local Municipality, the Labour Court held as follows in relation to what good cause entails:Good cause in the context of motivating a departure from the security provisions prescribed in s 145(7) and (8) would involve a proper explanation why this request should be entertained, with particular emphasis on any material prejudice the applicant may suffer if it is not granted this relief. I will illustrate the point by way of an example. A small manufacturing business with 20 employees dismisses ten employees for group misconduct. A CCMA commissioner then reinstates all these employees. The required security would be 24 months salary for each of these ten employees, which would then wipe out the entire operating cash flow of the undertaking for several months. This is the kind of prejudice I am referring to. Simply described, the explanation cannot be that it will be hard to set security, but the explanation must be that it would be unduly onerous and harmful to be required to set the prescribed security.Material prejudice to the employer is but one factor that the Labour Court must give consideration to it is by no means decisive. In exercising its discretion, the Labour Court must have regard to the particular circumstances of the case as well as considerations of equity and fairness to both the employer and the employee. A factor that the Labour Court must take into consideration is whether the employer is in possession of sufficient or adequate assets to meet an order of the review court upholding the arbitration award; the principal concern being that the dismissed employee should not be left unprotected if the Labour Court decides the review application in his or her favour.The onus is on the employer seeking an exemption from furnishing security under s 145(8) of the LRA to establish that it has assets of a sufficient value to meet its obligations should the arbitration award be upheld.

[62]In short, the Applicantsfinancial stability, its asset and income base demonstrate its ability to satisfy the arbitration award in the event of not succeeding on review and there is no risk that the Respondent would be left unprotected in that event, if security is not furnished at this point. As a result, Ican see no reason why the Applicant should be ordered to put up security.

courts judgement of the case

J1136/16

Sisonke Partnership t/a DSV Health Care (formerly UTI Pharma) v GIWUSA obo Zwane and Others (J1136/16) [2021] ZALCJHB 459 (8 December 2021)

[111] The principles had been set out by the LAC in Palluci Home Depot (Pty) Ltd v Herskowitz[[2011] 2 BLLR 129 (LAC) at par 18.] as follows:Where all the facts required to make a determination on the disputed issues are before a reviewing court in an unfair dismissal or unfair labour practice dispute such that the court is in as good a position as the administrative tribunal to make the determination, I see no reason why a reviewing court should not decide the matter itself. Such an approach is consistent with the powers of the Labour Court under s 158 of the LRA, which are primarily directed at remedying a wrong, and providing the effective and speedy resolution of disputes. The need for bringing a speedy finality to a labour dispute is thus an important consideration in the determination by a court of review of whether to remit the matter to the CCMA for reconsideration, or substitute its own decision for that of the commissioner.

Arbitrator failed to keep complete record

JR119/16

South African Police Services and Another v Kgolane and Others (JR119/16) [2021] ZALCJHB 197 (2 August 2021)

[16] It is apparent from the submissions that the reason for the delay of the filing of the recording, albeit incomplete, is due to the failure of the Arbitrator to secure the recordings of the arbitration proceedings. In Toyota SA Motors (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others[(CCT 228/14 [2015] ZACC 40 ; (2016) 37 ILJ 313 (CC)], it was stated that:It is the duty of the Commissioner of the CCMA conducting an arbitration to ensure that a proper and complete record of those proceedings is kept together with CCMA, to, ensure that if subsequently there is a review application a proper and complete record is made available to the registrar of the Labour Court. It may well be that a failure by the Commissioner to perform this important function constitutes misconduct or a gross irregularity as envisaged is section 145(2) and (b) respectively.[17] In Cashbuild (Pty) Ltd v Merwe NO and Others[JR 516-11, J2735/13 [2016] ZALCJHB 108], the Court held that:-The importance of the record cannot be overemphasised. The test for review has recently been affirmed by the Supreme Court of Appeal and the Labour Court requires this Court to examine the record and to determine ultimately whether notwithstanding any defects in the arbitrators reasoning or any other reviewable irregularity on the arbitrators part, the result of the proceedings can nonetheless be sustained by reference to the record. Where there is an incomplete record, this is obviously impossible where, as in a case such as the present one, the grounds for review are predicated on what are contended by the conclusions and findings that are not supported by evidence. The summary of evidence contained in the arbitrators award is intended to be precisely that. It is not a substitute for the record and is not by any means a basis from which reasonableness of any conclusion reached by the arbitrator can be ascertained.[18] In the present matter, it is apparent that the Applicants acted in good faith in an attempt to secure the record. The Applicants conduct was not intended at frustrating the First Respondents case nor was it aimed at abusing the Courts processes. This delay is wholly due to the failure of the Arbitrator to secure a complete record, a conduct which is described in Toyota SA supra as a gross irregularity.

[19] Based on the above, the application for an order for the reinstatement of the review application stands to succeed.

REINSTATEMENT AFTER DEEMED TO HAVE BEEN WITHDRAWN

JR 602/15

Mashego v Commission for Conciliation, Mediation and Arbitration and Others (JR 602/15) [2021] ZALCJHB 195 (27 July 2021)

[40] Be that as it may, the review application should be reinstated and be alive before the late filing of the record could be condoned. An application to have the review application reinstated could be filed together with an application in which condonation for the late filing of the record is sought, but an application to condone the late filing of the record, cannot be considered in circumstances where the review is deemed withdrawn, without an application for its reinstatement.

[37] The prevailing authority is that the withdrawal of a matter is not a bar to the reinstitution of the proceedings. For a deemed withdrawn application to be reinstated, the Applicant has to file a substantive application, which is then for the Court to consider and to decide whether or not to grant such an application.

[34] What is the status of a review application that is deemed withdrawn? This question was considered in SG Bulk v Khumalo and another[Unreported judgment handed down under case numbers JS 393/19 and JR 537/13.] where the Court held that it is by now settled law in this Court that where a review application is deemed withdrawn, there is no longer a live matter to be entertained.[Overberg District Municipality v IMATU obo Spangenberg and others case number C157-18 (08 June 2020) followed recently in Vesela Risk Services (Pty) Ltd v CCMA and others case number JR648-18 [2021] ZALCJHB 37 (28 January 2021)]

[35] In Robor Tube (Pty) Ltd V MEIBC and others[(2018) 39 ILJ 2332 (LC) at par 7] it was held that:In my view, there ought to be no reason, in principle, why an application that has been withdrawn ought not to be capable of reinstatement. First, the Labour Court is established as a court of law and equity, with the inherent powers and standing, in relation to matters under its jurisdiction, equal to that which a division of the High Court has under its jurisdiction. The court therefore has the inherent jurisdiction to regulate its own proceedings and control its own process.

[36] This was confirmed by the LAC in Ellies Electronics (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[(JA74/2018) [2020] ZALAC 33 (24 June 2020)] where it was held that:The withdrawal of a matter at the instance of a party is a unilateral act which results in the matter being removed from the roll in the same manner as if absolution from the instance had been granted. The fact that a matter has been withdrawn does not in principle bar either the reinstitution of proceedings or the institution of fresh proceedings (in which case the absolved defendant may not raise the defence of res judicata if sued again on the same cause of action). In finding differently, the Labour Court erred. Faced with an application to have the matter reinstated, it was for a court to determine whether or not to grant such application having regard to the relevant facts and issues of prejudice, while recognising that employment disputes by their nature are urgent and require speedy resolution.

[32] In Ralo v Transnet Port Terminals and Others [2015] ZAECPEHC 68 (17 June 2015), [2015] 12 BLLR 1239 (LC), (2015) 36 ILJ 2653 (LC), the Court accepted the legal definition of deemed as set out in the Namibian authority of Municipal Council of the Municipality of Windhoek v Marianna Esau (LCA 25/2009, 2 March 2010) where the Court held that the word deemed is considered to have a conclusive effect. This Court concluded by stating the following:The plain and unambiguous wording of the practice manual is to the effect that the applicant must be regarded as having withdrawn the review application.[33] In casu the Applicant had not filed the record within the prescribed 60 day period. Clause 11.2.3 of the Practice Manual makes it clear that if an applicant in a review application fails to file the record within the prescribed period, the applicant will be deemed to have withdrawn the application. That being so, the Applicant in casu is deemed to have withdrawn the review application and there is consequently no lis between the parties.

[45] In Randburg Towers (Pty) Ltd v Masilo and others[Unreported judgment handed down under case JR1758/2016, 19 February 2021.] the Court was also faced with a deemed withdrawn review application and held that:Simply put, there is no longer a review application that serves before the court. In those circumstances, in my view, the applicant in the present application is entitled to a declaratory order that gives effect to the consequences visited by clause 11.2.3 on an applicant that fails to comply with the time limits within which to file a record of proceedings sought to be reviewed.

[12] In Karan t/a Karan Beef Feedlot and Another v Randall,[(2009) 30 ILJ 2937 (LC) at para 14.] it was held:In summary: despite the fact that the rules of this court make no specific provision for an application to dismiss a claim on account of the delay in its prosecution, the court has a discretion to grant an order to dismiss a claim on account of an unreasonable delay in pursuing it. In the exercise of its discretion, the court ought to consider three factors: the length of the delay; the explanation for the delay; and the effect of the delay on the other party and the prejudice that that party will suffer should the claim not be dismissed.

cross-review

JR578/14

Bosch v JDG Group (Pty) Ltd and Others (JR578/14) [2021] ZALCJHB 171 (21 July 2021)

[9] It is acknowledged that Rule 7A of the Rules of this court does not make provision for a cross-review application. In the absence of any such provision, it follows that a party that wishes to challenge the findings of a commissioner in any material respects must comply with the provisions of Rule 7A even if another review application has been lodged by the other party. In essence, a separate review application must be launched with full compliance with the provisions of Rule 7A of the Rules of this Court. This point, which I align myself with, was emphasised in In SA Broadcasting Corporation Ltd v Grogan N O & another,[(2006) 27 ILJ 1519 (LC). See also Singh v First National Bank and Others (D397/2011) [2014] ZALCD 44 (9 September 2014).], where it was held that:Rule 7A makes no provision for an animal such as a 'counter-review'. This is in contradistinction to rule A 5(5) of the Rules of the Labour Appeal Court, that provides for a notice of cross-appeal to be delivered within 10 days (or such longer period as may on good cause be allowed) after receiving notice of appeal from an appellant.The absence of a similar provision in rule 7A relating to a 'counter-review' does not, to my mind, mean that a respondent in a review application can sit on his hands and then, only after the applicant has filed a rule 7A(8) notice, file a counter-review without further ado. On the contrary, it appears to me that what is styled as a 'counter-review' is simply an application for review by a different name. The second respondent seeks to review different aspects of the findings of the arbitrator, and on different grounds. That would usually be the case where a respondent seeks to bring an application for a 'counter-review'. He has to file a proper application for review, and has to do so within six weeks after publication of the award.

Power to interfere with the quantum compensation awarded

JA29/2020

Ekhuruleni Metropolitan Municipality v Mandosela and Others (JA29/2020) [2021] ZALAC 14; [2021] 10 BLLR 994 (LAC); (2021) 42 ILJ 2168 (LAC) (2 July 2021)

[24] It is submitted on behalf of the appellant that it is trite that when awarding compensation, the commissioner exercises a discretion which should not be too readily or easily interfered with by the Labour Court.[5] The appellant contends that the court a quo had no power to interfere with the quantum compensation awarded by the arbitrator, and in this regard relies on Kukard v GKD Delkor (Pty) Ltd[((2015) 36 ILJ 640 (LAC) at para 35] wherein the court held that:the courts power to interfere with quantum of compensation awarded by an arbitrator under s 194(1) of the LRA is circumscribed and can only be interfered with on the narrow grounds that the arbitrator exercised his or her discretion capriciously or upon the wrong principle, or with bias, or without reason or that she adopted a wrong approach. In the absence of one of these grounds, this court has no power to interfere with the quantum of compensation awarded by the commissionerIt is, therefore, for Delkor to persuade this court that the quantum of compensation awardee by the commissioner may be impugned on one of the narrow grounds referred to above

[29] On the facts set out in this matter, when granting an award of 12 months compensation, the court a quo did not advance any special circumstances justifying such a startling award given the provisions and the nature of the first respondents employment. The court a quo did not indicate whether the arbitrators exercise of his discretion was capricious, based on wrong principles, biased or whether the arbitrator misconducted himself.[Kemp t/a Centralmed v Rawlins (2009) 30 ILJ 2677 (LAC).]

power to interfere with the quantum compensation awarded by the arbitrator

JS926-18

One Asset Professional Engineering Services (Pty) Ltd t/a GE Power (JS926-18) [2021] ZALCJHB 112 (27 May 2021)

Ganga v St John's Parish (2014) 35 ILJ 1294 (LC)

[4] The respondent, Slimane Bouktab, concedes that he is a peregrinus of this Court and that it is obliged to provide security for the applicant's costs. The respondent tendered R50 000 as security. The applicant claims R200 000.[5] The dispute is only about the quantum of the security for costs. The Labour Court held that it has a wide discretion to be exercised by having regard to all relevant facts, including considerations of equity and fairness to both parties in the consideration of directing security.[1]

Application: suspension of award? Need to provide security?

J396/21

Emalahleni Local Municipality v Phooko N.O and Others (J396/21) [2021] ZALCJHB 61 (5 May 2021)

Memorandum of objects, Labour Relations Amendment Bill, 2012 states the following as the object of subsection (7)

This section is amended by introducing certain measures to reduce the number of review applications that are brought to frustrate or delay compliance with arbitration awards, and to speed up the finalisation of applications brought to the Labour Court to review arbitration awards.At present, a review application does not suspend the operation of an arbitration award. This often results in separate or interlocutory applications to stay enforcement of awards pending review proceedings. It is proposed that the operation of an arbitration award would be suspended if security is provided by the applicant in an amount specified in the provisions, or any lesser amount permitted by the Labour Court.[9] The prevailing and accepted position achieved by the Labour Court at the time of the amendment was that launching a review application does not suspend the operation of an arbitration award. In and around that time Rule 49 (11) of the Uniform Rules provided that the following suspended an operation and execution of an order; namely; (a) noting of an appeal or application for leave to appeal; (b) rescission application; and (c) review. The rule was codifying the common law rule. In light of the common law rule, it was necessary to clarify the position with regard to arbitration awards in relation to suspension. The Labour Court held that bringing a review application does not suspend the operation of an arbitration award. This position ultimately found itself in the LRA and obtained codification under subsection (7). In my view this position existed alongside subsection (3) for a while though not codified. For the above reasons, in my respectful view, it is fundamentally wrong to conclude that in the absence of furnishing of security, this Court is not empowered to exercise its discretion fully within the contemplation of subsection (3).

Rustenburg Local Municipality v SALGBC[[2017] 38 ILJ 2596 (LC).]

[29] That being said, the Court should always bear in mind the security requirements when exercising its discretion[32] In simple terms, the default position must be that the Labour Court will require security to be provided as prescribedas a condition for any stay or suspension order being granted by the Court, unless the applicant can show good and proper cause in the application why this should not be the case.

National Department of Health v Pardesi and Another[[2016] ZALCJHB 492 (September 2016) at para 6.]

[6] There are no facts before me that enable me to exercise a discretion to order that security should not be furnished. The default position must therefore apply. That being so, the provisions of s145 (7) prevail, i.e. the institution of review proceedings does not suspend the operation of the arbitration award. The application to set aside or suspend the operation of the writ accordingly stands to be dismissed.

LAC in City of Johannesburg v Samwu obo Monareng and another[JA 120/ delivered on 20 March 2019.]

[7] The Labour Court has discretionary power under section 145 (3) of the LRA to stay enforcement of an arbitration award pending its decision in the review application. It may stay the enforcement of an arbitration award pending the finalisation of a review application against the award with or without conditions. It may in terms of section 145 (8) of the LRA dispense with the requirement of furnishing security. Properly construed, section 145 (3) read with section 145 (7) and (8) should be interpreted to mean where an applicant in a review application furnishes security to the Labour Court , the operation of the arbitration award is automatically suspended pending its decision in the review application. In other words, the employer need not make an application in terms of section 145 (3) of the LRA to stay the enforcement of the arbitration award.

[14] I read this part of the judgment to mean that as a corollary, an applicant may apply for a stay which may be granted with or without conditions. A stay would effectively suspend the operation of an arbitration award. Proper reading of the judgment suggests that there are two distinct applications that a party may bring. Those are, for a stay or for being absolved from furnishing security. The following paragraph makes the point:[8] However, should the employer wish to be absolved from providing securitythen it is required to make an application to the Labour Court for the stay of the enforcement of the arbitration awardThe employer must make a proper case for the stay as well as for the provision of security in accordance with section

[16]...The general principles for the granting of a stay remains the following: 1. A Court will grant a stay of execution where real and substantial justice requires it or where injustice would otherwise result. 2. Since the Court will be guided by factors applicable to interim interdicts, the Court must be satisfied that:(a) The applicant has a well-grounded apprehension that execution is taking place at the instance of the respondent;(b) Irreparable harm will result if the execution is not stayed and the applicant ultimately succeeds in establishing a clear right;(c) Irreparable harm will invariably result if there is a possibility that the underlying causa (arbitration award) may ultimately be removed, i.e. where the underlying causa is the subject-matter of an ongoing dispute between the parties;(d) The court is not concerned with the merits of the underlying dispute the sole enquiry is simply whether the causa is in dispute.

[17]...Having traversed the authorities, I take a view that once a party satisfies the requirements spelled out above a stay must happen irrespective of whether a party has symbiotically sought to be absolved from the furnishing of security.

[21]...The LAC did not consider prejudice to an employer as being decisive. It considers it to be one factor but it is not decisive. It does seem that the LAC considers the sufficiency of assets as a crucial consideration. It held [25] In particular, because the facts more than adequately demonstrate that the appellant is in possession of sufficient assets to meet an order of the review court upholding the arbitration award in the dismissed employees favour.

section 158(1)(h) of the LRA

JR 414/18

Gert Sibande District Municipality v Selepe and Others (JR 414/18) [2021] ZALCJHB 49 (29 March 2021)

[6] The principles applicable to review applications such as in casu are enunciated in Hendricks v Overstrand Municipality and Another[(CA24/2013) [2014] ZALAC 49; [2014] 12 BLLR 1170 (LAC); (2015) 36 ILJ 163 (LAC)], where it was inter alia held that the only remedy available to the employer aggrieved by the disciplinary sanction imposed by an independent presiding officer, is the right to seek administrative law review. It was further held that section 158(1)(h) of the LRA empowers this Court to hear and determine reviews in this regard[3] on the grounds (i) listed in Promotion of Administration of Justice Act (PAJA)[4], provided the decision constitutes administrative action; (ii) in terms of the common law in relation to domestic or contractual disciplinary proceedings; or (iii) in accordance with the requirements of the constitutional principle of legality, such being grounds 'permissible in law'[5].

[7] The Municipality seeks a review of the Chairpersons findings on various grounds of misconduct, legality, irrationality and misdirection, with reliance on Quest Flexible Staffing Solutions (Pty) Ltd (A division of Adcorp Fulfilment Services (Pty) Ltd v Legobatse[6]. This is notwithstanding the fact that the LAC in that matter dealt with a review of an arbitration award under the provisions of section 145 of the LRA, where the Sidumo[7] test found application.

(JA104/13) [2014] ZALAC 55; [2015] 2 BLLR 105 (LAC), where it was held;

[12] The test that the Labour Court is required to apply in a review of an arbitrators award is this: Is the decision reached by the commissioner one that a reasonable decision-maker could not reach? Our courts have repeatedly stated that in order to maintain the distinction between review and appeal, an award of an arbitrator will only be set aside if both the reasons and the result are unreasonable. In determining whether the result of an arbitrators award is unreasonable, the Labour Court must broadly evaluate the merits of the dispute and consider whether, if the arbitrators reasoning is found to be unreasonable, the result is, nevertheless, capable of justification for reasons other than those given by the arbitrator. The result will, however, be unreasonable if it is entirely disconnected with the evidence, unsupported by any evidence and involves speculation by the arbitrator.

[8] Clearly the legal approach postulated by the Municipality in the light of the test enunciated in Hendricks[8] is unsustainable as correctly argued on behalf of Selepe. The correct approach in relation to reviews under section 158(1)(h) of the LRA as pointed out on behalf of Selepe, is that as summarised by Snyman AJ in South African Police Service & another v Ndebele and Others[9], which is that a party seeking a review under section 158(1)(h) of the LRA can competently do so where reliance is placed on the constitutional principle of legality. It is therefore apparent that the Municipality conflated the different tests applicable in respect of reviews sought under sections 145 and 158(1)(h) of the LRA.

[13] Whether the findings and the decision of the Chairperson ought to be reviewed on the grounds of legality involves a consideration of whether that decision can be said to be rationally connected to the purpose for which the power was given to him, and whether the Chairperson took account of all the relevant facts placed before him; followed a process that was not only lawful but fair, and whether his decision fell within the powers vested in him in the light of the issues he was required to determine.

[15] In the end, I am satisfied that the Chairperson in arriving at his findings, took account all the relevant facts placed before him, followed a process that was not only lawful but fair, and that his decision falls within the powers vested in him in the light of the issues he was required to determine. Accordingly, the decision of the Chairperson met the requirements of the legality test, and the review application ought to fail.

review and set aside an interlocutory ruling made by arbitrator

JR 2642/2019

South African Sports Confederation and Olympic Committee (SASCOC) v Commission for Conciliation, Mediation and Arbitration and Others (JR 2642/2019) [2021] ZALCJHB 23 (1 March 2021)

[3] Although the general rule is that rulings or decisions made during the course of arbitration proceedings may be subjected to review only after the issue in dispute has been finally determined by the CCMA, the court has a discretion in terms of section 158 (1B) of the Labour Relations Act (LRA) to hear the review application at an earlier stage. Given the nature of the arbitrators ruling and so is not to unduly delay the finalisation of the arbitration proceedings, in my view, it is just and equitable for the review application to be heard notwithstanding the fact that the arbitration proceedings remain incomplete.

[4] The ruling under review records that during the arbitration proceedings on 26 July 2019, the employees legal representative stated that they had requested the applicant to disclose certain documents, and that the latter had refused to do so on the basis that the documents were not relevant. Amongst the documents requested was an investigation report. The employees made a formal application for disclosure of the document. After an exchange of written submissions concerning the issue of professional legal privilege as it related to the investigation report, the arbitrator issued the ruling under review. His ruling records a brief summary of the submissions made by the parties. On behalf of the employees, it was submitted that the applicant was entitled to claim privilege in respect of communications which took place in preparation for the arbitration hearing, and in relation to the arbitration hearing itself. It is not in dispute that the investigation report was commissioned by the applicant, which instructed the firm Norton Rose Fulbright Inc. to undertake a forensic investigation and produce a report.

1. The ruling issued by the second respondent on 14 November 2019 and under case number HO 478-18 in which the applicant was ordered to disclose certain forensic investigation reports, is reviewed and set aside.

legality: [26] The Applicant in the Founding and Supplementary Affidavits as well as the Heads of Argument does not rely upon PAJA. I shall therefore proceed to consider this matter under the provisions of the LRA as opposed to PAJA.

JR124/18

City of Johannesburg v Jacobs N.O and Others (JR124/18) [2021] ZALCJHB 12 (8 February 2021)

Firstly; it is by now settled that section 158(1)(h) of the LRA is available to review the decisions of the state in its capacity as an employer.

[18] Furthermore, the Applicant squarely places its reliance on the principle of legality. It is also settled that the principle applicable in section 158(1)(h) is that of legality.[9] As stated by the SCA in NDPP v Freedom under Law,[(2014) 4 SA 298 (SCA) 309B-D; see also MEC for the Department of Health, Western Cape v Weder (2014) 35 ILJ 2131 (LAC) at para 33.] the legality principle has become well established in our law as an alternative pathway to judicial review of exercises of public power where Promotion of Administrative Justice Act[11] (PAJA) finds no application. The principle permits review on grounds of both legality and rationality.[12]

[19] Dealing with legality the Court in Hendricks[Hendricks v Overstrand Municipality & another (2014) 12 BLLR 1170 (LAC); (2015) 36 ILJ 163 (LAC) at para 28.] found that:. Legality includes a requirement of rationality. It is a requirement of the rule of law that the exercise of public power by the executive and other functionaries should not be arbitrary. Decisions must be rationally related to the purpose for which the power was given, otherwise they are in effect arbitrary and inconsistent with the rule of law.[20] The Court in Khumalo & another v MEC for Education: KwaZulu-Natal[(2014) 35 ILJ 613 (CC).] also specifically dealt with the meaning of legality, in the context of a review application under section 158(1)(h), and held: The principle of legality is applicable to all exercises of public power and not only to 'administrative action' as defined in PAJA. It requires that all exercises of public power are, at a minimum, lawful and rational. [21] In MEC for the Department of Health, Western Cape v Weder;MEC for the Department of Health, Western Cape v Democratic Nursing Association of SA on behalf of Mangena,[(2014) 35 ILJ 2131 (LAC) at para 33.] the Court held that the principle of legality has developed over the past decade, to the extent that a parallel system of review for action which falls outside of the strict definition of administrative action, has developed. Having so held, the Court then proceeded to set out this development as follows:[] Public functionaries are required to act within the powers granted to them by law.See Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council & others (1999) 1 SA 374 (CC) at para 58,[][22] Furthermore, in the seminal judgment in Pharmaceutical Manufacturers Association of SA & another: In re Ex parte President of the Republic of SA & others, the court laid down the core element of legality as follows:[[2000] ZACC 1; (2000) 2 SA 674 (CC) at para 85.]

[23] The Court in Weder[19] then proceeded to consider this component of rationality as part of the legality enquiry, and held:In later judgments the court has developed this concept of rationality requiring the executive or public functionaries to exercise their power for the specific purposes for which they were granted so that they cannot act arbitrarily, for no other purpose or an ulterior motive.[24] Furthermore, in Democratic Alliance v President of the Republic of SA & others,[(2013) 1 SA 248 (CC) at para 39.] the court held:'If in the circumstances of a case, there is a failure to take into account relevant material that failure would constitute part of the means to achieve the purpose for which the power was conferred. And if the failure had an impact on the rationality of the entire process, then the final decision may be rendered irrational and invalid by the irrationality of the process as a whole.'[25] Of further guidance when considering legality review grounds, is the following dictum in Ntshangase v MEC for Finance: KwaZulu-Natal & another[(2009) 30 ILJ 2653 (SCA) at para 18.], where it was held: All actions and/or decisions taken pursuant to the employment relationship between the second respondent and its employees must be fair and must account for all the relevant facts put before the presiding officer. Where such an act or decision fails to take account of all the relevant facts and is manifestly unfair to the employer, he/she is entitled to take such decision on review. Moreover, the second respondent has a duty to ensure an accountable public administration in accordance with ss 195 and 197 of the Constitution.

Practice Manual, Clause 11.2.3. (sixty days)

JR 1215/18

Greater Taung Local Municipality v South African Local Government Bargaining Council and Others (JR 1215/18) [2021] ZALCJHB 16 (17 January 2021)

[13] If, for any reasons, the record cannot be uplifted and filed within a prescribed period of sixty days, the applicant party must[12]:13.1 Request consent for the extension of that sixty-day period from the respondent; and13.2 If consent is refused, on notice of motion (as prescribed in Rule 7) supported by an affidavit, apply to the Judge President in chambers for an extension of time;13.3 The Judge President will then allocate the file to a judge for a ruling, to be made in chambers, on any extension of time that the respondent should be afforded to file the record.

clauses 11.2.3 and 16.1 are not a substitute for the provisions of rule 11 of the Rules

Minister of Justice and Correctional Service v Mashiya and Others [2017] ZALCJHB 140 (5 May 2017) at paras 23 to 27.

[14] If the applicant fails to file a record within the prescribed period of sixty days and has not followed the steps above, the applicant will be deemed to have withdrawn the application, through inordinate delays, and the application will be archived in terms of the provisions of clause 16 of the Practice Manual. The Manual provides further that where a file has been placed in archives, it shall have the same consequences as to further conduct by any respondent party as to the matter having been dismissed. The review application in the current matter should be deemed to be in that position presently, viz. as to further conduct by the registrar, withdrawn and archived; and the same consequences as to further conduct by any respondent party as to the matter having been dismissed. The main subject in the last statement lies more in the phrase the same consequences than dismissed. This court has confirmed that an application can only be dismissed through a Court Order, and not a deeming provision in the Practice Manual[13].[15] In that regard, this Court in Minister of Justice and Correctional Service v Mashiya and Others[14] held as follows:[23] the provisions of the Practice Manual, and in particular, clauses 11.2.3 and 16.1 are not a substitute for the provisions of rule 11 of the Rules of this Court. Molahlehi J in his judgment specifically held that the provisions of the Practice Manual were simply a procedural tool to facilitate the management of review applications and did not trump the Rules of this Court.[24] There is a perception amongst practitioners in this Court that the raising of these provisions can lead to an application being dismissed, and this is premised on an incorrect interpretation of the provisions of clause 16.3 of the Practice Manual which provide that:Where a file has been placed in archives, it shall have the consequences as to further conduct by any respondent party as to the matter having been dismissed.[25] These provisions as already indicated above, cannot trump over the Rules of this Court. Thus, it cannot be correct that if a file is archived by way of a directive or as a result of an administrative action by the office of the Registrar, the implications thereof are that the matter is dismissed for all intents and purposes. In most instances, files are archived at the instance of the Registrar of this Court to the extent that there was non-compliance with the Rules of this Court. Where however, there is a directive from a Judge to archive a file, the effect thereof is that the file will remain dormant until such time that an application is launched in terms of the provisions of clause 16.2 to retrieve it. Only upon a consideration of that application can a Judge (normally in chambers) dismiss the application to retrieve the file, which would then have the effect of dismissing the review application. In this case, it was contended on behalf of Mashiya that a directive was sought from the Judge President in terms of the provisions of clause 16 of the Practice Manual, but that the matter was not attended to. It cannot however follow from those unsuccessful attempts be concluded that the review application in this matter is of necessity dismissed.[26] To reiterate, a mere directive or administrative action on the part of the office of the Registrar to have a file archived cannot have the status of a court order. A matter can only be dismissed through a court order. Thus, if a respondent party is of the view that the applicant party in review proceedings is not doing enough to expedite the finalisation of the matter, including even after the pleadings have been closed, the appropriate route would be to approach the court with a rule 11 application to dismiss that review application.[27] The net effect of clauses 11.2.3 and 16.1 of the Practice Manual if invoked is merely to deem applications as withdrawn, which can be reinstated by way of an application for condonation as it had happened in this case, or where a matter is archived in terms of clause 16 of the Practice Manual, it can equally be retrieved upon such an application by the affected party, unless determined otherwise by a Judge in chambers.

[16] A party to a dispute in which the file has been archived may therefore submit an application, on affidavit, for the retrieval and reinstatement of the matter, on notice to all other parties to the dispute. The provisions of Rule 7 will apply to an application brought in terms of this provision[15]. Alternatively, that party can duly file an application for condonation, with good cause shown, of the delays occasioned in the filing of the record within the prescribed period.[17] Either way, where there is no consent given by the respondent, the extension of the sixty-day time period for the filing of the record, or the granting of the condonation, following the delays occasioned by any party, including the Commission for Conciliation, Mediation and Arbitration, a bargaining council or the registrars office, can only be granted by the judge, either in chambers or in the open court. Prior to that, the application will be deemed as withdrawn and archived. The option availed for the applicant is the seeking of an order dismissing the review application, as in the present case; and for the respondent, seeking the judges directive and extension of time, or condonation[16] for the occasioned delays.

South African Municipal Workers Union obo Mlalandle v South African Local Government Bargaining Council and Others [2017] 1 BLLR 99 (LC)

To the extent that the defaulting party may contend that it would suffer prejudice on account of any application of clause 11.2.3 of the Practice Manual, or that it would be deprived of its right to access to court and to have its application fully ventilated, the proper order is to strike the review application from the roll. Once a matter has been struck off the roll, nothing prevents a party from filing an application to have the review application reinstated, together with an application in which condonation for the late filing of the record is sought.[18] (My emphasis)

This is in line with a normative principle expressed in a Latin maxim cursus curiae est lex curiae, meaning that the established practices of the court are the laws of the court.

"deemed to have been withdrawn

PR193/2019

Zono v Minister of Justice and Correctional Services In re:Minister of Justice and Correctional Services v Zono and Others (PR193/2019) [2020] ZALCJHB 215; [2020] 11 BLLR 1160 (LC) (29 July 2020)

[17] An application for reinstatement of a review application deemed to, ha ve been withdrawn is, in essence, an application for condonation. It is incumbent '?n the applicant to show good cause why, in this case, the record of the proceedings under review was not filed within the prescribed time limit. Condonation is not there merely for the asking, nor are applications for condonation a mere formality (see NUMSA v Hillside Aluminium [2005] 6 BLLR' 601 (LC); D. errick Grootboom v National Prosecuting Authority & another [20.14} 1 BLLR (CC)). A party seeking condonation must make out a case for the indulgence sought and bears the onus to satisfy the court that condonation should be granted.

J 617/2020

National Union of Metal workers of South Africa v Tshwane University of Technology (J 617/2020) [2020] ZALCJHB 216; [2020] 11 BLLR 1141 (LC) (20 July 2020)

[30] In Gcaba[Gcaba v Minister for Safety and Security and Others (2009) 30 ILJ 2623 (CC) at para 56] the Constitutional Court in considering the question whether the conduct complained of, was administrative action has held that:Generally, employment and labour relationship issues do not amount to administrative action within the meaning of PAJA. This is recognised by the Constitution. Section 23 regulates the employment relationship between employer and employee and guarantees the right to fair labour practices. The ordinary thrust of section 33 is to deal with the relationship between the state as bureaucracy and citizens and guarantees the right to lawful, reasonable and procedurally fair administrative action. Section 33 does not regulate the relationship between the state as employer and its workers. When a grievance is raised by an employee relating to the conduct of the state as employer and it has few or no direct implications or consequences for other citizens, it does not constitute administrative action.

[34] In my view, the matter does not involve the constitutionality of administrative action as organisational rights are limited to rights between a trade union and an employer. This matter does not fall within the purview of PAJA because no administrative action was taken by an organ of State, but the Respondent simply responded to the Lufil judgment to the extent that a trade union may not admit members when it is precluded to do so in terms of its own constitution.

[35] It follows that if the Applicant is by law not entitled to demand organisational rights, it is not entitled to an order reinstating such rights and a recognition agreement wherein those rights were afforded. The retraction of a recognition agreement under those circumstances does not constitute administrative action and this matter does not fall within the purview of PAJA.Absent the operation of PAJA, this dispute concerns the recognition agreement and it has to be resolved in terms of the statutory dispute resolution processes provided for in the LRA.[36] For these reasons the Applicant is not entitled to relief as it cannot rely directly on the Constitution, nor is the termination of a recognition agreement administrative action. In absence of a prima facie right, I need not consider the remaining requirements for interim relief. It follows that this application has to fail.

evidence in the absence of it having been put to the opposing partys witnesses under cross-examination

JR2456/17

Consolidated Power Projects (Pty) Ltd v Schoeman and Others (JR2456/17) [2020] ZALCJHB 112 (15 July 2020)

Urban Africa Security (Pty) Ltd v CCMA and others[(2012) 33 ILJ 2201 (LC) para 20. Followed in University of Venda v M and others (2017) 38 ILJ 1376 (LC) para 95] that to rely on evidence in the absence of it having been put to the opposing partys witnesses under cross-examination constitutes a reviewable defect. And yet the Commissioner did so and without providing reasons why Schoeman was a credible witness and why his evidence is more reliable. This conclusion the Commissioner was not entitled to reach without an evaluation of the credibility of all the witnesses before him, and the reliability of their evidence. There is no evidence ex facie the award that he did so and this renders his award reviewable and liable to be set aside.

JR 242/2018

Mashego v Commission for Conciliation, Mediation and Arbitration and Others (JR 242/2018) [2020] ZALCJHB 111 (15 July 2020)

Head of the Department of Education v Mofokeng and Others [2015] 1 BLLR 50 (LAC).

[32] Review is not permissible on the same grounds that apply under PAJA. Mere errors of fact or law may not be enough to vitiate the award. Something more is required. To repeat: flaws in the reasoning of the Arbitrator, evidenced in the failure to apply the mind, reliance on irrelevant considerations or the ignoring of material factors etc. must be assessed with the purpose of establishing whether the Arbitrator has undertaken the wrong enquiry, undertaken the enquiry in the wrong manner or arrived at an unreasonable result. Lapses in lawfulness, latent or patent irregularities and instances of dialectical unreasonableness should be of such an order (singularly or cumulatively) as to result in a misconceived inquiry or a decision which no reasonable decision-maker could reach on all the material that was before him or her.[33] Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the Arbitrator misconceived the inquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the Arbitrators conception of the inquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result. The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA. Provided the right question was asked and answered by the Arbitrator, a wrong answer will not necessarily be unreasonable. By the same token, an irregularity or error material to the determination of the dispute may constitute a misconception of the nature of the enquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone. The Arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination.

Irregularities or errors in relation to the facts or issues

Head of the Department of Education v Mofokeng

[46] In my view, the termination letter was a material piece of evidence and it was incumbent upon the arbitrator to have considered it as such.

limited scope possessed by this Court to review an arbitration award: reasonableness

JR 1626/2017

Shan's Transport and Logistics Agency (Pty) Ltd v National Bargaining Council for the Road Freight and Logistics Industry and Others (JR 1626/2017) [2020] ZALCJHB 84 (25 May 2020)

Bestel v Astral Operations Ltd and Others [2011] 2 BLLR 129 (LAC) at para 18.

arbitrators finding will be unreasonable [1] if the finding is unsupported by any evidence,[2] if it is based on speculation by the arbitrator,[3] if it is disconnected from the evidence,[4] if it is supported by evidence that is insufficiently reasonable to justify the decision or[5] if it was made in ignorance of evidence that was not contradicted.' [My insertions]

.the ultimate principle upon which a review is based is justification for the decision as opposed to it being considered to be correct by the reviewing court; that is whatever this Court might consider to be a better decision is irrelevant to review proceedings as opposed to an appeal. Thus, great care must be taken to ensure that this distinction, however difficult it is to always maintain, is respected.

Clauses 11.2.1 -11.2.3 of the Practice Manual, Clause 16.2

JR 904/17

National Union of Mineworkers and Another v Commission for Conciliation Mediation and Arbitration and Others (JR 904/17) [2020] ZALCJHB 184 (13 May 2020)

[27] The Applicants ought to have filed an application to have the review application reinstated, which they failed to do and instead they sought condonation for the late filing of a record without an application to reinstate the review application. Condonation for the late filing of a record cannot be granted in respect of a review application that is deemed to be withdrawn.

[23] There is a distinction to be drawn between the provisions of Clauses 11.2.1 -11.2.3 of the Practice Manual, which provide that a review application is deemed to be withdrawn when the record was filed outside the prescribed period and Clause 16 which provides for the archiving of files.[24] Clause 16 provides that the Registrar will archive a file in the case of a review application when a period of six months has elapsed without any steps been taken by the applicant from the date of filing the application or the date of the last process filed. Clause 16.2 provides that a party whose file had been archived, may submit an application, on affidavit and on notice to all the other parties to the dispute, for the retrieval of the file.[25] In casu, the Applicants file was not archived by the Registrar, but is deemed to be withdrawn by operation of the provisions of the Practice Manual.[26] There is no bar, either in the Rule of this Court or the Practice Manual to the Applicants filing an application to have the review application reinstated in the event it was deemed to be withdrawn. Logic dictates that the review should be reinstated and be alive before the late filing of the record could be condoned.

Two stage approuch

JR2236/16

South African Police Service v Sotheni and Others (JR2236/16) [2020] ZALCJHB 57 (4 March 2020)

[22] What this means is a two stage review enquiry. Firstly, the review applicant must establish that there exists a failure or error on the part of the arbitrator. If this cannot be shown to exist, that is the end of the matter. Secondly, if this failure or error is shown to exist, the review applicant must then further show that the outcome arrived at by the arbitrator was unreasonable. If the outcome arrived at is nonetheless reasonable, despite the error or failure that is equally the end of the review application. In short, in order for the review to succeed, the error or failure must affect the reasonableness of the outcome to the extent of rendering it unreasonable.

[23] Further, the reasonableness consideration envisages a determination, based on all the evidence and issues before the arbitrator, as to whether the outcome the arbitrator arrived at can nonetheless be sustained as a reasonable outcome, even if it may be for different reasons or on different grounds.[Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 964 (LAC) at para 102] In the end, it would only be if the outcome arrived at by the arbitrator cannot be sustained on any grounds, based on the material before the arbitrator as a whole, and the irregularity, failure or error concerned is the only basis to sustain the outcome the arbitrator arrived at, that the review application would succeed.[Campbell Scientific Africa (Pty) Ltd v Simmers and Others (2016) 37 ILJ 116 (LAC) at para 32; Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others (2015) 36 ILJ 1453 (LAC) at para 12.]

if errors material to the determination of the dispute constitute a misconception of the nature of the enquiry which consequently affect the fair trial of the issues, an award may be set aside on that ground alone.

JR2099/16

Anglogold Ashanti Limited v Association of Mineworkers and Construction Union obo Dlungane and Others (JR2099/16) [2020] ZALCJHB 46 (20 February 2020)

Head of the Department of Education v Mofokeng [2015] 1 BLLR 50 (LAC) at paras 30-33; see also Goldfields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others [2007] ZALC 66; [2014] 1 BLLR 20 (LAC). Herholdt v Nedbank Ltd (Congress of South African Trade Unions as amicus curiae) [2013] 11 BLLR 1074 (SCA).

section 158 (1) (h) is a legality review

J1652/19

South African Broadcasting Corporation (Soc) Ltd v Keevy and Others (J1652/19) [2020] ZALCJHB 31; [2020] 6 BLLR 607 (LC) (7 February 2020)

Ramonetha v Department of Transport Limpopo and others [2018] 1 BLLR 16 (LAC)

[40] What we glean from this is that the exercise of public power which is at variance with principle of legality is inconsistent with the Constitution itself. In short, it is invalid Relating all this to the matter before us, the award of the DoD agreement was exercise of public power. The principle of legality may thus be a vehicle for its review. The question is: did the award conform to legal prescripts? If it did, that is the end of the matter. If it did not, it may be reviewed and possibly set aside under legality review.[19]

[28] The net effect of Motau and other related judgments is that every decision must be one that falls within the confines of the law. It has now been authoritatively held that there is no longer a common law review. It is either a constitutional review - popularly known as legality/rationality review or a review under the Promotion of Administrative Justice Act[24] (PAJA) for administrative decisions. Since this is a review of own decision, it has been held that the only applicable review is that of legality/rationality.

PAJA

CA 5/2019

Minister of Justice and Correctional Services and Others v Ramaila and Others (CA 5/2019) [2020] ZALAC 41 (9 November 2020)

[44] Against the background sketched, a collective agreement, regulating conditions of service of employees falling within its coverage, although adversely affecting Mr Ramaila, is purely contractual in nature and has no external legal effect outside the bargaining council. Therefore, it does not constitute an administrative action reviewable under PAJA.

[51]...As I see it, although s 5 changes the complexation of a collective agreement into a ministerial determination neither the deeming provision nor the Minister of DPSAs directive would mutate the contractual nature of a collective agreement, which regulates purely employees conditions of service, into administrative action. To hold otherwise would be a bridge too far. Not much needs to be said about the administrative nature of the Performance Management Policy. It remains purely an employment and labour relationship issue which does not fall within the ambit of administrative action.

Clauses 6 of the Incentive Policy Framework and the Performance Management Policy are not administrative action within the meaning of PAJA and therefore not reviewable under s 6 of PAJA.

Mere errors of fact or law may not be enough to vitiate the award

JR1190/16

Ramabulana v CCMA and Others (JR1190/16) [2019] ZALCJHB 232 (3 September 2019)

Head of Department of Education v Mofokeng & others [2015] 1 BLLR 50 (LAC)

Commissioner cross-examine witness

Credibility finding

JR2803/16

NUMSA obo Mathonsi v SCAW Metals (Pty) Ltd and Others (JR2803/16) [2019] ZALCJHB 201; (2020) 41 ILJ 254 (LC) (20 August 2019)

National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others at para 31.

The issue of the importance of credibility findings made by the commissioner being accepted in this court on review was made by Mr Snider, who represented the third respondent. He submitted that it was the commissioner who sat in the arbitration proceedings, looked at the witnesses, listened to them, and assessed their credibility, and on review, this court should not readily interfere with this, as the commissioner was in the best position to make these findings. I agree with these submissions. This court should not readily interfere with credibility findings made by CCMA commissioners, and should do so only if the evidence on the record before the court shows that the credibility findings of the commissioner are entirely at odds with or completely out of kilter with the probabilities and all the evidence actually on the record and considered as a whole. Findings by a commissioner relating to demeanour and candour of witnesses, and how they came across when giving evidence, would normally be entirely unassailable, as this court is simply not in a position to contradict such findings. Even if I do look into the issue of the credibility findings of the second respondent in this case, I am of the view that the record of evidence in this case, if considered as a whole simply provides no basis for interfering with the credibility findings of the second respondent. There is simply nothing out of kilter between the evidence by the witnesses on record and the credibility findings the second respondent came to. The evidence on record in my view actually supports the second respondent's credibility findings. The credibility findings of the second respondent therefore must be sustained.

test expanded

JR2783/18

Idwala Industrial Holdings v Commissioner Pieterson N.O and Others (JR2783/18) [2019] ZALCJHB 176 (19 July 2019)

Following the Herholdt and Goldfields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others[4] judgments, the Labour Appeal Court handed down the judgment of Head of Department of Education v Mofokeng and Others

Head of Department of Education v Mofokeng and Others [2015] 1 BLLR 50 (LAC).

"[32] Mere errors of fact or law may not be enough to vitiate the award. Something more is required. To repeat: flaws in the reasoning of the arbitrator, evidenced in the failure to apply the mind, reliance on irrelevant considerations or the ignoring of material factors .etc. must be assessed with the purpose of establishing whether the arbitrator has undertaken the wrong enquiry, undertaken the enquiry in the wrong manner or arrived at an unreasonable result. Lapses in lawfulness, latent or patent irregularities and instances of dialectical unreasonableness should be of such an order (singularly or cumulatively) as to result in a misconceived enquiry or a decision which no reasonable decision maker could reach on all the material that was before him or her.

[17] The dictum in Mofokeng highlights many important things about the review test. The dictum provides for the following analysis:17.1 The first enquiry is whether the facts ignored were material, which will be the case if a consideration of them would (on the probabilities) have caused the commissioner to come to a different result;17.2 if this is established, the (objectively wrong) result arrived at by the commissioner is prima facie unreasonable;17.3 a second enquiry must then be embarked upon it being whether there exists a basis in the evidence overall to displace the prima facie case of unreasonableness; and17.4 if the answer to this enquiry is in the negative, then the award stands to be set aside on review on the grounds of unreasonableness (and vice versa).

Refused to allow them an opportunity to lead evidence

JR725/17

Medi Logistics (Pty) Ltd v Ntsoane N.O and Others (JR725/17) [2019] ZALCJHB 107 (22 May 2019)

Dimbaza Foundries Ltd vs CCMA and Others (1999) 20 ILJ 1163 (LC).

This constituted an error in the conduct of proceedings by the arbitrator. Clearly the applicant had not anticipated that the De-Wet would change tact at the CCMA. No prejudice would have been suffered by De-Wet in standing the matter down for an hour to allow the witness to come and testify. For the arbitrator to refuse a party an opportunity to deal with something crucial and proceed to find against that party on the aspect he refused to allow them an opportunity to lead evidence, constitutes a reviewable irregularity.[2]

the public sector is reviewable on grounds listed in PAJA

JR548/2018

Emalahleni Local Municipality v Sibanyoni N.O and Another (JR548/2018) [2019] ZALCJHB 111 (17 May 2019)

[32] The LAC thus confirmed that a determination by a presiding officer in the public sector is reviewable on grounds listed in PAJA, common law and the principle of legality.

Hoexter C Administrative Law in South Africa, 2nd edition, 340.

Rationality was defined by Hoexter[3] as follows:[t]his means in essence that a decision must be supported by the evidence and information before the administrator as well as the reasons given for it. It must also be objectively capable of furthering the purpose for which the power was given and for which the decision was purportedly taken.

Hendricks v Overstrand Municipality and Another [2014] 12 BLLR 1170 (LAC), (2015) 36 ILJ 163 (LAC) at para 29.

In sum therefore, the Labour Court has the power under section 158(1)(h) to review the decision taken by a presiding officer of a disciplinary hearing on i) the grounds listed in PAJA, provided the decision constitutes administrative action; ii) in terms of the common law in relation to domestic or contractual disciplinary proceedings; or iii) in accordance with the requirements of the constitutional principle of legality, such being grounds permissible in law.

J1048/19

State Information Technology Agency Soc Ltd (SITA) v Commission for Conciliation, Mediation and Arbitration (CCMA) and Others (J1048/19) [2019] ZALCJHB 287; [2019] 9 BLLR 962 (LC); (2019) 40 ILJ 2850 (LC) (2 May 2019)

Uncomplete Arbitration- Review - where defect so patent that it would not lead to a fair hearing.

[36]... the Labour Appeal Court held that where all the facts required to make a determination of the disputed issues are before the reviewing court so that the court is in as good a position as the administrative tribunal to make the determination, the court should decide the matter itself. That approach, the court noted, was consistent with the powers of this court under s 158 of the LRA which are primarily directed at remedying a wrong, and providing the effective and speedy resolution of disputes. Expedited finality is thus an important consideration in the determination of whether to remit the matter for reconsideration, or to substitute.

outcome: court not referring matter to authority for reconsideration

JR1969-18

Putco (Pty) Ltd v SA Road Passenger Bargaining Council and Others (JR1969-18) [2019] ZALCJHB 137; (2019) 40 ILJ 2389 (LC) (11 April 2019)

Palluci Home Depot (Pty) Ltd v Heskowitz and others [2015] 5 BLLR 484 (LAC)

based on jurisdictional error

JR616/15

Mathopo,Moshimane and Mulangaphuma T/A DM5 INC v Commission for Conciliation,Mediation and Arbitration and Others (JR616/15) [2019] ZALCJHB 21 (5 February 2019)

SA Rugby Players Association v SA Rugby (Pty) Ltd and Others; SA Rugby (Pty) Ltd v SARPU [2008] ZALAC 3; [2008] 9 BLLR 845 (LAC) at para 41.

The issue was simply whether, objectively speaking, the facts which would give the CCMA jurisdiction to entertain the dispute existed. If such facts did not exist, the CCMA had no jurisdiction irrespective of its finding to the contrary.

Court not must consider the totality of the evidence and then decide

JR2333/2015

Belo & Kies Construction (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR2333/2015) [2019] ZALCJHB 2 (9 January 2019)

[44] The review Court is not required to take into account every factor individually, consider how the arbitrator treated and dealt with each of those factors and then determine whether a failure by the arbitrator to deal with such is sufficient to set the award aside. This piecemeal approach of dealing with the award is improper as the reviewing court must consider the totality of the evidence and then decide whether the decision made by the arbitrator is one that a reasonable decision maker could make, based on the evidence presented[3].

Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA (2014) 35 ILJ 943 (LAC) at paras 18 and 19.

[30] The failure by an arbitrator to apply his or her mind to issue which are material to the determination of a case will usually be an irregularity. However, the [SCA] in Herholdt and this court in Gold Fields have held that before such an irregularity will result in the setting aside of the award, it must in addition reveal a misconception of the true enquiry or result in the setting aside of the award. It must in addition reveal a misconception of the true enquiry or result in an unreasonable outcome[31] Moreover, judges of the Labour Court should keep in mind that it is not only the reasonableness of the outcome which is subject to scrutiny. As the SCA held in Herholdt, the arbitrator must not misconceive the inquiry or undertake the inquiry in a misconceived manner. There must be a fair trial of the issues. (Emphasis added)

arbitrator ignoring material facts

JR 1620/15

Moeketsi v Transnet Bargaining Council (JR 1620/15) [2018] ZALCJHB 398 (5 December 2018)

Head of the Department of Education v Mofokeng [2015] 1 BLLR 50 (LAC) at paras 30 - 33; Subsequent to Herholdt v Nedbank Ltd (Congress of South African Trade Unions as amicus curia) [2013] 11 BLLR 1074 (SCA) and Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and others [2014] 1 BLLR 20 (LAC).

the award will be reviewable if the distorting effect of this misdirection was to render the result of the award unreasonable. However, the arbitrator must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination.

no portion of record

JR1992/2010

Nkosi v Cachalia NO and Others (JR1992/2010) [2018] ZALCJHB 293 (25 September 2018)

JDG Trading (Pty) Ltd t/a Russells v Whitcher [2005] ZALC 1; [2001] 3 BLLR 300 (LAC) 41 At 303 pars 1113

Labour Appeal Court held that the Labour Court should not have considered the review application before it because it had only been provided with the commissioners handwritten notes and an untranscribed tape recording. In the absence of the transcribed record, Goldstein AJA held, the court a quo was in no position to adjudicate properly on the application before it and ought accordingly to have dismissed it

no other remedy

J 2497-18

Mpele v Municipality Council of the Lesedi Local Municipality and Others (J 2497-18) [2018] ZALCJHB 383; [2018] 12 BLLR 1192 (LC); (2019) 40 ILJ 572 (LC) (13 August 2018)

[40] The Labour Appeal Court in Hendricks[7] found that public sector employees aggrieved by dismissal or unfair labour practices should ordinarily pursue the remedies available in sections 191 and 193 of the LRA, as mandated and circumscribed by s 23 of the Constitution Surveying the broad ambit of case law from Chirwa[8] through to Gcaba[9], the LAC found that challenges to the legality of decisions taken by the state in its capacity as employer could be reviewed on any grounds permissible in law, if no other remedy is available.

evidence that had not served before the Commissioner

JR326/16

Jonker v Commission for Conciliation, Mediation and Arbitration and Others (JR326/16) [2018] ZALCJHB 247 (10 July 2018)

Xorile v CCMA [2014] ZALCJHB 512 (8 December 2014),

it is not permissible to introduce in the review proceedings evidence that had not served before the Commissioner hearing the arbitration. Such additional evidence was accordingly disregarded in the assessment of the review application.

errors

JR1909/15

BMW (South Africa) (Pty) Ltd v National Union of Metalworkers of South Africa (NUMSA) and Others (JR1909/15) [2018] ZALCJHB 217 (3 July 2018)

Head of Department of Education v Mofokeng and Others (2015) 36 ILJ 2802 (LAC) at 2813

[33] Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the enquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrator's conception of the enquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result. The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA. Provided the right question was asked and answered by the arbitrator, a wrong answer will not necessarily be unreasonable. By the same token, an irregularity or error material to the determination of the dispute may constitute a misconception of the nature of the enquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone. The arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination.

that is challenged is a discretion such as the one exercised in terms of s 194(1) the test

JA41/2018

Bester (Scott) In re: Small Enterprise Finance Agency SOC Ltd v Commission for Conciliation Mediation and Arbitration and Others (JA41/2018) [2019] ZALAC 73; [2020] 3 BLLR 244 (LAC); (2020) 41 ILJ 877 (LAC) (11 December 2019)

Kemp t/a Centralmed v Rawlins (2009) 30 ILJ 2677 (LAC) at para 55.

the test that the court, called upon to interfere with the discretion, will apply is to evaluate whether the decision-maker acted capriciously, or upon the wrong principle, or with bias, or whether or not the discretion exercised was based on substantial reasons or whether the decision-maker adopted incorrect approach.

section 14(2) of the Employment of Educators Act

CA10/2018

Member of the Executive Council for the Department of Education Western Cape Government v Jethro N.O and Another (CA10/2018) [2019] ZALAC 38; [2019] 10 BLLR 1110 (LAC); (2019) 40 ILJ 2318 (LAC) (13 June 2019)

[49]... The Labour Court accordingly did not err in setting aside the impugned decision on the grounds contemplated in sections 6(2)(e)(v) and (vi) of PAJA.

[43] The remaining question is whether the appellants decision that there was no good cause for reinstatement is reviewable. Various factors are relevant in determining whether good cause exists for reinstatement under section 14(2) of the EEA. In the interests of flexibility, it is inadvisable for courts to define the requirements of good cause too categorically. There is nonumerus claususof factors. Much will depend on the facts and circumstances of the case. Relevant considerations include: i) the reasons for the absence; ii) the duration of the absence; iii) the conduct of the educator prior and subsequent to his or her deemed discharge; iv) the impact of the absence on the employer; v) the whereabouts of the educator during the period of absence; vi) the practicality and tolerability of a continued employment relationship; and vii) the availability of alternative processes and solutions to the problem that led to the educators absence.

MEC for the Department of Health, Western Cape v Weder (2014) 35 ILJ 2131 (LAC) (Weder).

court held that it did not suffice for the employer to simply say without more, that the absence of the employee for the requisite period without a subsequent satisfactory explanation rendered the employment relationship intolerable.

List of probable grounds for review application

CA3/2018

Khan v Commission for Conciliation Mediation and Arbitration and Others (CA3/2018) [2019] ZALAC 47 (3 May 2019)

Masuku v Score Supermarket (Pty) Ltd (2013) 34 ILJ 147 (LC) at para 10; Seardel Group Trading t/a Romatex Home Textiles v Petersen [2011] 2 BLLR 211 (LC) at para 13.

a party seeking to review or appeal the exercise of such a discretion required to show that the decision-maker acted capriciously, or upon a wrong principle, or in a biased manner, or for unsubstantiated reasons, or committed a misdirection or an irregularity, or failed to exercise its discretion, or exercised its discretion improperly or unfairly

security for costs

JA120/2017

City of Johannesburg v SAMWU obo Monareng and Another (JA120/2017) [2019] ZALAC 54; (2019) 40 ILJ 1753 (LAC) (20 March 2019)

Rustenburg Local Municipality v South African Local Government Bargaining Council and Others (2017) 38 ILJ 2596 (LC)

what good cause entails: Good cause in the context of motivating a departure from the security provisions prescribed in s145(7) and (8) would involve a proper explanation why this request should be entertained, with particular emphasis on any material prejudice the applicant may suffer if it is not granted this relief. I will illustrate the point by way of an example. A small manufacturing business with 20 employees dismisses 10 employees for group misconduct. A CCMA commissioner then reinstates all these employees. The required security would be 24 months salary for each of these ten employees, which would then wipe out the entire operating cash flow of the undertaking for several months. This is the kind of prejudice I am referring to. Simply described, the explanation cannot be that it will be hard to set security, but the explanation must be that it would be unduly onerous and harmful to be required to set the prescribed security.

JA76/2016

Solidarity obo Van Tonder v Armanents Corporation of South Africa (SOC) Limited and Others (JA76/2016) [2019] ZALAC 55; [2019] 8 BLLR 782 (LAC); (2019) 40 ILJ 1539 (LAC) (8 March 2019)

Western Cape Education Department v General Public Service Sectoral Bargaining Council and Others [2014] 10 BLLR 987 LAC at para 19 read with para 35 (and in SA Rugby Players' Association and Others v SA Rugby (Pty) Ltd and Others; SA Rugby (Pty) Ltd v Sarpu and Another [2008] ZALAC 3; [2008] 9 BLLR 845 LAC at para 41).

An applicant seeking review of a finding of constructive dismissal must show that the decision was objectively wrong. The review standard is correctness not reasonableness - as the issue is one going to jurisdiction.

Albany Bakeries Limited v Van Wyk and Others

Sidumo not only ground: in determining jurisdiction to arbitrate an alleged unfair dismissal dispute

JR1679/16

Cronos Airlines International (Pty) Ltd v Ngwenya NO and Others (JR1679/16) [2018] ZALCJHB 212 (30 May 2018)

Kukard v GKD Delkor (Pty) Ltd [2015] 1 BLLR 63 (LAC).

I now turn to question of whether the CCMA had jurisdiction to deal with this dispute. Since the jurisdiction of the CCMA is intrinsic to the purported dismissal of the appellant as defined in s186 of the LRA, this Court must first determine whether, on an objective assessment of the evidence, the Labour Court was correct in setting aside the Commissioners finding that the appellant was dismissed by Delkor within the meaning of s186(1)(a) of the LRA. In determining whether the CCMA has jurisdiction to deal with a dispute, the Labour Court is not limited to the Sidumo (reasonableness) test of review, but may determine the issue de novo.

the employees unfair dismissal referral to arbitration, under case number GAEK9450/15 is dismisse.

Principles

JR2578/14

WBHO Civil Construction (Pty) Ltd v Hlatshwayo N.O. and Others (JR2578/14) [2018] ZALCJHB 176 (10 May 2018)

[43] As to when a decision will be unreasonable, it will only be so if it is one that a reasonable decision-maker could not arrive at.[7] It must thus fall outside of a notional range of reasonable decisions that could be reached on a given set of facts.[8] It will fall outside this range if the decision is not capable of justification[9] (i.e. justifiable) or, put differently, cannot plausibly be reached on the material evidence.[10] This will be the case if the award is entirely disconnected with the evidence or is unsupported by any evidence and involves speculation by the commissioner.[11] It follows from this that [a commissioners] award will be reasonable when there is a material connection between the evidence and the result, or, put differently, when the result is supported by some [material] evidence.[12] In short, a wrong award is not, in itself, reviewable; to be so, it must be so wrong (obviously wrong[13]) as to be unreasonable. The result of this is that there will be many awards where this court differs with the decision of the commissioner awards that might rightly be described as unsatisfactory or poor but where the result is, nevertheless, not unreasonable, and the award thus not reviewable.[14]

[7] Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC) at para 110.[8] Sidumo at paras 109 and 119.[9] Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer & others (2015) 36 ILJ 1453 (LAC) at para 12.[10] Hillside Aluminium Ltd v Kuppusami and Others [2014] ZALCD 62 at para 15.[11] Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae) (2013) 34 ILJ 2795 (SCA) at para 13.[12] Anglo Platinum at para 11.[13] Goodyear SA (Pty) Ltd v CCMA & others (2004) 1 BLLR 7 (LAC) at para 6.[14] Shoprite Checkers (Pty) Ltd v Ramdaw NO & others (2001) 22 ILJ 1603 (LAC) at para 101.

In these circumstances, a reasonable commissioner would, in my view, have found that the individual respondents were guilty of having intimidated sub-contractors outside the entrance gate.Although the misconduct of the individual respondents was serious, there are material mitigating factors in their favour. To begin with, as reasonably (not necessarily correctly) found by the commissioner: (i) it was inappropriate for the shift cancelling instruction to have been issued to the shop steward and it was bound to miscarry; (ii) the rationale for the instruction was without merit and the decision to cancel the shift was mala fide; and (iii) confusion reigned supreme on the Saturday. Each of these factors is compelling.

in adopting an overly technical approach in interpreting the allegations of misconduct

JR243/16

Mohlala v MEIBC and Others (JR243/16) [2018] ZALCJHB 161 (24 April 2018)

Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission forConciliation, Mediation & Arbitration & others (2014) 35 ILJ 943 (LAC) at para 20

(1) In terms of his or her duty to deal with the dispute with the minimum of legal formalities, did the process used by the commissioner give the parties a full opportunity to have their say?(2) Did the commissioner identify the dispute he or she was required to arbitrate?(3) Did the commissioner understand the nature of the dispute he or she was required to arbitrate?(4) Did the commissioner deal with the substantial merits of the dispute?(5) Is the commissioners decision one that another decision maker could reasonably have arrived at based on the totality of the evidence?Even if the court might have taken a different view of the evidence that is not enough to overturn the arbitration award.

JR1091/2011

Xstrata South Africa (Proprietary) Limited - Thorncliffe Mine v NUM obo Mphofelo and Others (JR1091/2011) [2018] ZALCJHB 148 (11 April 2018)

It is whether the commissioner misconceived the enquiry he or she had to conduct or reached an unreasonable decision. The commissioner was enjoined by section 138 (1) of the Labour Relations Act[1] (the LRA) to conduct the arbitration fairly and to deal with the substantial merits of the dispute with minimum legal formalities. The applicant correctly relied on the authorities which provide that before taking the decision to dismiss an employee, an employer is required to afford an employee an opportunity to state a case.

nit picking approach to charges particularly inappropriate given the scale of irregularities involved

JR1334/14

Nevehethalu v Commission for Conciliation, Mediation and Arbitration and Others (JR1334/14) [2018] ZALCJHB 109 (13 March 2018)

the court is confined to what is raised in the review application itself, except in limited exceptional circumstances such as the existence of a jurisdictional issue neither party had identified

Commercial Workers Union of SA v Tao Ying Metal Industries & others (2008) 29 ILJ 2461 (CC)

[67] Subject to what is stated in the following paragraph, the role of the reviewing court is limited to deciding issues that are raised in the review proceedings. It may not on its own raise issues which were not raised by the party who seeks to review an arbitral award. There is much to be said for the submission by the workers that it is not for the reviewing court to tell a litigant what it should complain about. In particular, the LRA specifies the grounds upon which arbitral awards may be reviewed. A party who seeks to review an arbitral award is bound by the grounds contained in the review application. A litigant may not on appeal raise a new ground of review. To permit a party to do so may very well undermine the objective of the LRA to have labour disputes resolved as speedily as possible.[68] These principles are, however, subject to one qualification. Where a point of law is apparent on the papers, but the common approach of the parties proceeds on a wrong perception of what the law is, a court is not only entitled, but is in fact also obliged, mero motu, to raise the point of law and require the parties to deal therewith. Otherwise, the result would be a decision premised on an incorrect application of the law. That would infringe the principle of legality. Accordingly, the Supreme Court of Appeal was entitled mero motu to raise the issue of the commissioner's jurisdiction and to require argument thereon. However, as will be shown below, on a proper analysis of the record, the arbitration proceedings in fact did not reach the stage where the question of jurisdiction came into play.

Head of Department of Education v Mofokeng & Others(2015) 36 ILJ 2802 (LAC)

section158(1)(h) of the LRA

J2106/2013

Thaba Chweu Local Municipality v Koma and Others (J2106/2013) [2018] ZALCJHB 103 (13 March 2018)

[8]The Labour Court may in terms of section158(1)(h) of the LRA, review any decision taken or any act performed by the state in the capacity as employer on such grounds that are permissible in law.

Hendricks v Overstrand Municipality [2014] 12 BLLR 1170 (LAC) at para 29

t was held that a decision taken by the state in its capacity as employer could be reviewed on any grounds permissible in law, if no other remedy is available. The grounds permissible in law were identified as (i) those listed in PAJA, provided the decision constituted an administrative action; (ii) in terms of the common law in relation to domestic or contractual disciplinary proceedings; or (iii) on the basis of the constitutional principle of legality.

[30] The failure by an arbitrator to apply his or her mind to issues which are material to the determination of a case will usually be an irregularity. However, the Supreme Court of Appeal (the SCA) in Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae) and this court in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation & Arbitration & others6 have held that before such an irregularity will result in the setting aside of the award, it must in addition reveal a misconception of the true enquiry or result in an unreasonable outcome.

JR2235/13

Harmony Gold Mining Company Limited v Lefosa and Others (JR2235/13) [2017] ZALCJHB 56 (7 February 2017)

[27]I am of the view that in this matter, the fact that the Commissioner misconstrued the nature of the enquiry before him, in fact resulted in an unreasonable finding.

Head of the Department of Education v Mofokeng and Others [2014] ZALAC 50; [2015] 1 BLLR 50 (LAC); [2015] 36 ILJ 2802 (LAC).

he relevant facts which the Commissioner ignored constitute material facts. Had the Commissioner considered these facts and the probabilities, he would have come to a different conclusion on the finding of Mr Lefosas guilt and on sanction. As a result, the award isprima facieunreasonable and there is no basis in the evidence to displace theprima faciecase of unreasonableness. The Commissioners failure to consider a number of material facts distorted the outcome of the hearing and resulted in an unreasonable and thus reviewable award.

African Bank v Magashima & Others (JR2419/12) [2014] ZALCJHB 298 (5 August 2014) unreported case.

Comtech (Pty) Ltd v Molony NO and Others (DA12/05) [2007] ZALAC 40 (21 December 2007)

Rule 7A(2)(c) of the Labour Court Rules requires an applicant in a review to set out the factual and legal grounds of the review in the founding papers.

the determination, by a court of review, of whether to remit the matter to the CCMA for reconsideration

Palluci Home Depot (Pty) Ltd Heskowitz and others [2015] 5 BLLR 484 (LAC)

Where all the facts required to make a determination on the disputed issues before a reviewing court in an unfair dismissal or unfair labour practice dispute such that the court is in as good a position as the administrative tribunal to make the determination, see no reason why a reviewing court should not decide the matter itself. Such an approach is consistent with the paths of the Labour Court under s 158 of the LRA, which primarily directed at remedying a wrong, and providing effective and speedy resolution of disputes. The need for bringing a speedy finality to labour dispute is thus an important consideration in the determination, by a court of review, of whether to remit the matter to the CCMA for reconsideration, or substitute its own decision for that of the commissioner.

that once the Commissioner misconstrues the nature of the enquiry before him/her, the result will invariably be unreasonable.

applicable legal principles

JR2246/14

Fidelity Security Services (Pty) Ltd v SATAWU obo Richard and Others (JR2246/14) [2018] ZALCJHB 59 (1 February 2018)

Herholdt v Nedbank Ltd [2013] 11 BLLR 1074 (SCA)

This court is entitled to interfere with an award made by a commissioner if and only if the commissioner misconceived the nature of the enquiry (and thus denied the parties a fair hearing) or committed a reviewable irregularity which had the consequence of an unreasonable result. The failure by an arbitrator to attach particular weight to evidence or attachment of weight to the relevant evidence and the like is not in itself a basis for review; the resultant decision must fall outside of a band of decisions to which reasonable decision-makers could come on the same material. In other words, the test is two-staged. First, the applicant must establish a misconception of the nature of the enquiry or some misconduct or misdirection on the part of the arbitrator. If that is established, whether a decision is unreasonable in its result ultimately requires this court to consider whether apart from the flawed reasons of or any irregularity by the arbitrator, the result could still be reasonably reached in the light of the issues and the evidence.

Gold Fields Mining SA (Pty) Ltd v CCMA [2007] ZALC 66; [2014] 1 BLLR 20 (LAC)

a review court is not required to take into account every factor individually, consider how the arbitrator treated and dealt with each factor and then determine whether a failure by the arbitrator to deal with one or more factors amounted to a process-related irregularity sufficient to set aside the award. The court cautioned against adopting a piecemeal approach since a review court must necessarily consider the totality of the available evidence (at paragraph 18 of the judgement). Specifically, the questions for a review court to ask is whether the arbitrator gave the parties a full opportunity to have their say in respect of the dispute, whether the arbitrator identified the issue in dispute that she was required to arbitrate, whether the arbitrator understood the nature of the dispute, whether he or she dealt with a substantial merits of the dispute and whether the decision is one that another decision-maker could reasonably have arrived at based on the evidence (see paragraph 20). So, when arbitrator fails to have regard to the material facts it is likely that he or she will arrive at a decision that is unreasonable. Similarly, where an arbitrator fails to follow proper process he or she will arrive at an unreasonable outcome. But, as the court emphasised, this is to be considered on a totality of the evidence and not on a fragmented, piecemeal analysis (at paragraph 21).

Condonation period: application be brought in terms of section 158(1)(h) of the LRA.

JA86/2016

G4S Secure Solutions (SA) (Pty) Ltd v Gunqubele N.O. and Others (JA86/2016) [2017] ZALAC 52; [2017] 12 BLLR 1181 (LAC); (2018) 39 ILJ 131 (LAC) (5 September 2017)

Weder v MEC for Health, Western Cape [2013] 1 BLLR 94 (LC); (2013) 34 ILJ 1315 (LC).

that although an application should be brought within a reasonable time, an applicant should apply for condonation if the application was made after six weeks.

What, then, is a reasonable time in the context of s 158 of the LRA? It is tempting simply to assume that it should be six weeks, by analogy to the time period provided for in s 145. At the most, it cannot be more than the 180 days provided for in PAJA; in fact, given that PAJA does not apply and that the process is closely aligned to that set out in s 145 and rule 7A, I would suggest that anything more than six weeks should at least trigger an application for condonation.

Associated Institutions Pension Fund v Van Zyl 2005 (2) SA 302 (SCA).

review vs resission

JA83/2016

Bloem Water Board v Nthako NO and Others (JA83/2016) [2017] ZALAC 42; (2017) 38 ILJ 2470 (LAC); [2017] 11 BLLR 1073 (LAC) (28 June 2017)

The arbitrator arrived late for the hearing. The employer who had been in attendance had already left. The arbitrator concluded that the employer was obliged to attend for the whole day and that the employer had abandoned the arbitration and proceeded to hear evidence and issued an award. The employer did not seek to rescind the award in terms of section 144 of the LRA but instead launched an application to review the alleged misconduct of the arbitrator. Held on appeal that the although internal remedies should be exhausted and piecemeal reviews are to be avoided, the Labour Court may intervene in medias res where the interests of justice require it although this power is to be used sparingly and only in exceptional circumstances. As the interest of justice required it and exceptional circumstances were present the appeal was upheld.

Collet v Commission for Conciliation, Mediation and Arbitration and Others (2014) 35 ILJ 1948 (LAC).

[48] The reasonableness or unreasonableness of a delay is entirely dependent on the facts and circumstances of any particular case (see eg Setsokosane at 86G). The investigation into the reasonableness of the delay has nothing to do with the Courts discretion. It is an investigation into the facts of the matter in order to determine whether, in all the circumstances of that case, the delay was reasonable. Though this question does imply a value judgment it is not to be equated with the judicial discretion involved in the next question, if it arises, namely, whether a delay which has been found to be unreasonable, should be condoned (see Setsokosane at 86EF).

Wolgroeiers case and Setsokosane Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoerkommissie, en n ander 1986 (2) SA 57 (A)

application of the rule requires consideration of two questions:(a) Was there an unreasonable delay?(b) If so, should the delay in all the circumstances be condoned?

[22] The result is that the commissioner was not justified in her finding that the rescission application was delivered late and she should have rescinded the award. It therefore follows that there are prospects of success as regards the appeal and the applications for condonation should be granted and the appeal reinstated and upheld.

held that the jurisdiction of the CCMA should be established by employees pleaded case at the CCMA

CA8/16

Jurisdiction of the CCMA employees dismissed for contravening employers disciplinary code- stole watermelons belonging to a client CCMA dismissing employees unfair dismissal claim employees on review challenging the award on the validity of their dismissal employees now challenging the validity and lawfulness of the general managers decision to overturn the chairperson of the disciplinary initial sanction- employees contending that such decision contrary to the collective agreement held that the jurisdiction of the CCMA should be established by employees pleaded case at the CCMA - that the information on the referral form reveals that the employees referred a substantively and procedurally unfair dismissal dispute to the CCMA, thereby clothing the CCMA with jurisdiction. Court deems it unnecessary to deal with the validity and lawfulness allegation as the Constitutional Court inEdconhas not overruled the LACsdictumin the same Case Appeal dismissed and Labour Courts judgment upheld.

gross irregularity

JA5/15

Consol Glass v National Bargaining Council for the Chemical Industries and Others (JA5/15) [2017] ZALAC 12 (3 February 2017)

Toyota SA Motors (PTY) LTD v Commission for Conciliation, Mediation & Arbitration and Others (2016) 37 ILJ 313 (CC) at 343-345 paras 95 102.

[105]..As the authorities referred to above reveal, a gross irregularity is conduct on the part of an arbitrator or decision maker that prevents one of the parties from having its case fairly heard or that prevents a fair trial of issues. Any decision by the commissioner to prevent Toyota from cross-examining Mr Makhotla on such a crucial aspect of the case would be a gross irregularity justifying the setting aside of the commissioner's award.

refusal by the employer, Director OD to implement a grievance outcome.

JR214/2016

City of Johannesburg Metropolitan Municipality v South African Municipal Workers Union obo Matsheka and Others (JR214/2016) [2017] ZALCJHB 469 (14 December 2017)

[2] The Second Respondent lacked jurisdiction to adjudicate the dispute.

test

JR1115/15

Kommal and Another v South African Police Service and Others (JR1115/15) [2017] ZALCJHB 450 (5 December 2017)

National Union of Metalworkers of SA on behalf of Motloba v Johnson Controls Automotive SA (Pty) Ltd & others (2017) 38 ILJ 1626 (LAC)

[38] Following the decision of the Constitutional Court in Sidumo & another v Rustenburg Platinum Mines Ltd & others on the review test this court provided further guidance on the test in a number of its decisions. In Head of Department of Education v Mofokeng & others, this court provided the following useful exposition on the test which needs to be quoted in extenso:[30] The failure by an arbitrator to apply his or her mind to issues which are material to the determination of a case will usually be an irregularity. However, the Supreme Court of Appeal (the SCA) in Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae) [(2013) 34 ILJ 2795 (SCA)] and this court in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation & Arbitration & others [(2014) 35 ILJ 943 (LAC)], have held that before such an irregularity will result in the setting aside of the award, it must in addition reveal a misconception of the true enquiry or result in an unreasonable outcome.[31] The determination of whether a decision is unreasonable in its result is an exercise inherently dependent on variable considerations and circumstantial factors. A finding of unreasonableness usually implies that some other ground is present, either latently or comprising manifest unlawfulness. Accordingly, the process of judicial review on grounds of unreasonableness often entails examination of inter-related questions of rationality, lawfulness and proportionality, pertaining to the purpose, basis, reasoning or effect of the decision, corresponding to the scrutiny envisioned in the distinctive review grounds developed casuistically at common law, now codified and mostly specified in s 6 of the Promotion of Administrative Justice Act (PAJA); such as failing to apply the mind, taking into account irrelevant considerations, ignoring relevant considerations, acting for an ulterior purpose, in bad faith, arbitrarily or capriciously, etc. The court must nonetheless still consider whether, apart from the flawed reasons of or any irregularity by the arbitrator, the result could be reasonably reached in the light of the issues and the evidence. Moreover, judges of the Labour Court should keep in mind that it is not only the reasonableness of the outcome which is subject to scrutiny. As the SCA held in Herholdt, the arbitrator must not misconceive the enquiry or undertake the enquiry in a misconceived manner. There must be a fair trial of the issues.[32] However, sight may not be lost of the intention of the legislature to restrict the scope of review when it enacted s 145 of the LRA, confining review to defects as defined in s 145(2) being misconduct, gross irregularity, exceeding powers and improperly obtaining the award. Review is not permissible on the same grounds that apply under PAJA. Mere errors of fact or law may not be enough to vitiate the award. Something more is required. To repeat: flaws in the reasoning of the arbitrator, evidenced in the failure to apply the mind, reliance on irrelevant considerations or the ignoring of material factors etc must be assessed with the purpose of establishing whether the arbitrator has undertaken the wrong enquiry, undertaken the enquiry in the wrong manner or arrived at an unreasonable result. Lapses in lawfulness, latent or patent irregularities and instances of dialectical unreasonableness should be of such an order (singularly or cumulatively) as to result in a misconceived enquiry or a decision which no reasonable decision maker could reach on all the material that was before him or her.[33] Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the enquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrators conception of the enquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result. The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA. Provided the right question was asked and answered by the arbitrator, a wrong answer will not necessarily be unreasonable. By the same token, an irregularity or error material to the determination of the dispute may I constitute a misconception of the nature of the enquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone. The arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination. (Emphasis added.)

James and Another v Eskom Holdings SOC Ltd and Others (CA8/16) [2017] ZALAC 39; (2017) 38 ILJ 2269 (LAC); [2017] 10 BLLR 979 (LAC) (13 June 2017)

Security

J779/2017

Rustenburg Local Municipality v South African Local Government Bargaining Council and Others (J779/2017) [2017] ZALCJHB 261; (2017) 38 ILJ 2596 (LC); [2017] 11 BLLR 1161 (LC) (30 June 2017)

JR2177/16

Danone Southern Africa (Pty) Ltd and Another v Commission for Conciliation, Mediation and Arbitration and Others (JR2177/16) [2017] ZALCJHB 252 (30 June 2017)

onduct by commissioner in coming to finding; commissionermero motumaking own enquiries without knowledge of parties; conduct irregular

Jurisdiction

JR322/15

Rademeyer v Aveng Mining Ltd and Others (JR322/15) [2017] ZALCJHB 257 (28 June 2017)

Review concerning issue of jurisdiction. Test of rationality and reasonableness does not apply; award considered de novo on the basis of being right or wrong

commissioner: involvement

JR906/13

Cash Paymaster Services (Proprietary) Limited v Hlatswako N.O. and Others (JR906/13) [2017] ZALCJHB 217 (6 June 2017)

Vodacom Service Provider (Pty) Ltd v Phala 2007 28 IJL 1335 LC

13 A commissioner has a discretion about how the arbitration should be conducted. A commissioner may decide to adopt an adversarial approach or an inquisitorial approach. In an inquisitorial approach the commissioner is in control of the process. The commissioner plays a more active role in the hearing, calling witnesses and interrogating them to ascertain the truth. The commissioner cannot abandon the well-established rules of natural justice and must be careful to guard against creating a suspicion of bias. In this regard see Mutual and Federal Insurance Co Ltd v CCMA and Others [1997] 12 BLLR 1610 (LC) at 1619 20 and County Fair Foods (Pty) Ltd v Theron NO and Others (2000) 21 ILJ 2649 (LC).... 15 A commissioner is required to conduct the proceedings in a fair, consistent and even handed manner. A commissioner cannot assist or be seen to assist, one party to the detriment of the other. A commissioner cannot put to witnesses his propositions, should not interrupt the witnesses answers, challenge the consistency of a witness with his own evidence, indicate that he doubted the witnesss credibility, or make submissions regarding the construction of evidence.

commissioner failed to accord full and unbiased attention to the entire evidence before him

JR610/2015

Bold Moves 1991 v Mdluli and Others (JR610/2015) [2017] ZALCJHB 238 (20 April 2017)

[35] In my view, the commissioner failed to give complete and impartial attention to the totality of the evidence before him prior to drawing his conclusion which is not supported by the evidence led as reflected in the record.

Lukhanji Municipality v Nonxuba NO and Others[2007] 2 BLLR 130 (LC) at par 27 referred to Stellenbosch Farmers Winery Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11 (SCA)

To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; their reliability; and (c) the probabilities. As to (a), the courts finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witnesss candour and demeanour in the witness box.(ii) his bias, latent and blatant.(iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witnesss reliability will depend, apart from the factors mentioned under (a) (ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to(c), this necessitates an analysis and evaluation of the probability or improbability of each partys version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when a courts credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be latter. But when all factors are equipoised probabilities prevail.

absence of a proper record

JR761/2014

Department of Agriculture v Peach and Others (JR761/2014) [2016] ZALCJHB 499 (13 December 2016)

Baloyi v MEC for Health and Social Development, Limpopo (2016) 37 ILJ 549 (CC); 2016 (4) BCLR 443 (CC); [2016] 4 BLLR 319 (CC).

[15] The LAC in Francis Baard did not refer to the recent Constitutional Court authority in Baloyi v MEC for Health and Social Development, Limpopo. The apex court held that, in the absence of a proper record, the Labour Court ought at least to have remitted the matter for rehearing.

Review tests simplified

(firstly) that there exists a failure or error on the part of the arbitrator in making the award...(Secondly) that the review applicant must then show that the outcome arrived at was also unreasonable (Then) if the outcome arrived at is nonetheless reasonable, despite the error or failure, that is equally the end of the review application... In short, for a review application to succeed, the error of failure must affect the reasonableness of the outcome, rendering it unreasonable.

Herholdt v Nedbank Ltd and Another (2013) 34 ILJ 2795 (SCA) at para 25.

. A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to the particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of consequence if their effect is to render the outcome unreasonable.

Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and Others (2014) 35 ILJ 943 (LAC) at para 14. The Gold Fields judgment was followed by the LAC itself in Monare v SA Tourism and Others (2016) 37 ILJ 394 (LAC) at para 59; Quest Flexible Staffing Solutions (Pty) Ltd (A Division of Adcorp Fulfilment Services (Pty) Ltd) v Legobate (2015) 36 ILJ 968 (LAC) at paras 15 17; National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others (2015) 36 ILJ 2038 (LAC) at para 16.

jurisdictional ruling

JR693/15

Minister of Justice and Correctional Services and Another v Naude and Others (JR693/15) [2016] ZALCJHB 478 (2 December 2016)

.Nothing said in Sidumo means that the CCMAs arbitration award can no longer be reviewed on the grounds, for example, that the CCMA had no jurisdiction in a matter or any of the other grounds specified in section 145 of the Act.If the CCMA had no jurisdiction in a matter, the question of the reasonableness of its decision would not arise. (emphasis added)

.in a case such as the present, where a gross irregularity in the proceedings is alleged, the enquiry is not confined to whether the arbitrator misconceived the nature of the proceedings, but extends to whether the result was unreasonable, or put another way, whether the decision that the arbitrator arrived at is one that falls in a band of decisions a reasonable decision maker could come to on the available material

[28]In short, the reasonableness test envisages a determination, based on all the evidence and issues before the arbitrator, as to whether there is a failure or error in the arbitrators award, and if so, whether the outcome the arbitrator arrived at can nonetheless be sustained as a reasonable outcome, even if it may be for different reasons or on different grounds... In the end, it would only be if the outcome arrived at by the arbitrator cannot be sustained on any grounds, based on that material, and the irregularity, failure or error concerned is the only basis to sustain the outcome the arbitrator arrived at, that the review application would succeed.

InAnglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others (2015) 36 ILJ 1453 (LAC) at para 12.

.the reviewing court must consider the totality of evidence with a view to determining whether the result is capable of justification. Unless the evidence viewed as a whole causes the result to be unreasonable, errors of fact and the like are of no consequence and do not serve as a basis for a review.

Recusal refused

JR2103/12

Premier Foods (Pty) Ltd (Nelspruit) v Commission for Conciliation, Meditation and Arbitration and Others (JR2103/12) [2016] ZALCJHB 426; (2017) 38 ILJ 658 (LC) (8 November 2016)

recusal application: the second respondent never came close to deciding the issue of his recusal based on these principles.

The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.'

A review application can still succeed without a review applicant having to show that the outcome arrived at by the arbitrator is unreasonable, where the review grounds are founded on the text of Section 145(2)(a) itself.[3]For example, if an arbitrator commits misconduct in the course of conducting the arbitration, it does not matter whether the outcome arrived at is reasonable, as the misconduct itself vitiates the proceedings, resulting in the award being set aside.

Sasol Infrachem v Sefafe and Others (2015) 36 ILJ 655 (LAC) at para 54.

To summarise, in cases where it was held that the presiding officer ought to have recused himself or herself at the outset, but failed to do so, the entire proceedings before the arbitrator or presiding officer are a nullity.

JR178/14

Ramatswi v South African Local Government Bargaining Council and Others (JR178/14) [2016] ZALCJHB 405 (18 October 2016)

Palluci Home Depot (Pty) Ltd v Herskowitz & others (2015) 36 ILJ 1511 (LAC)

'Mere errors of fact or law may not be enough to vitiate the award. Something more is required. To repeat: flaws in the reasoning of the arbitrator, evidence in the failure to apply the mind, reliance on irrelevant considerations or the ignoring of material factors etc, must be assessed with the purpose of establishing whether the arbitrator has undertaken the wrong enquiry, undertaken the enquiry in the wrong manner or arrived at an unreasonable result. Lapses in lawfulness, latent or patent irregularities and instances of dialectical unreasonableness should be of such an order (singularly or cumulatively) as to result in a misconceived enquiry or a decision which no reasonable decision maker could reach on all the material that was before him or her.'

Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 964 (LAC) at para 101.

.Nothing said inSidumomeans that the grounds of review in s 145 of the Act are obliterated. The Constitutional Court said that they are suffused by reasonableness. Nothing said inSidumomeans that the CCMA's arbitration award can no longer be reviewed on the grounds, for example, that the CCMA had no jurisdiction in a matter or any of the other grounds specified in s 145 of the Act. If the CCMA had no jurisdiction in a matter, the question of the reasonableness of its decision would not arise. Also if the CCMA made a decision that exceeds its powers in the sense that it is ultra vires its powers, the reasonableness or otherwise of its decision cannot arise.

Baur Research CC v Commission for Conciliation, Mediation and Arbitration and Others (2014) 35 ILJ 1528 (LC) at para 18. See also Chabalala v Metal and Engineering Industries Bargaining Council and Others (2014) 35 ILJ 1546 (LC) at para 13.

What this means is that where it comes to an arbitrator acting ultra vires his or her powers or committing misconduct that would deprive a party of a fair hearing, the issue of a reasonable outcome is simply not relevant. In such instances, the reviewable defect is found in the actual existence of the statutory prescribed review ground itself and if it exists, the award cannot be sustained, no matter what the outcome may or may not have been. Examples of this are where the arbitrator should have afforded legal representation but did not or where the arbitrator conducted himself or herself during the course of the arbitration in such a manner so as to constitute bias or prevent a party from properly stating its case or depriving a party of a fair hearing. The reason for reasonable outcome not being an issue is that these kinds of defects deprive a party of procedural fairness, which is something different from the concept of process related irregularity.

The test on review

JR2946/2010, J494/13

Industrial Development Corporation of South Africa Limited (IDC) v Roscher and Others (JR2946/2010, J494/13) [2016] ZALCJHB 292 (2 August 2016)

Head of the Department of Education vMofokeng and Others [2015] 1 BLLR 50 (LAC) at paras 30-33.

[30] The failure by an arbitrator to apply his or her mind to issues which are material to the determination of a case will usually be an irregularity. However, the Supreme Court of Appeal (the SCA) in Herholdt v Nedbank Ltd and this court in Goldfields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and others have held that before such an irregularity will result in the setting aside of the award, it must in addition reveal a misconception of the true enquiry or result in an unreasonable outcome.[31] The determination of whether a decision is unreasonable in its result is an exercise inherently dependant on variable considerations and circumstantial factors. A finding of unreasonableness usually implies that some other ground is present, either latently or comprising manifest unlawfulness. Accordingly, the process of judicial review on grounds of unreasonableness often entails examination of inter-related questions of rationality, lawfulness and proportionality, pertaining to the purpose, basis, reasoning or effect of the decision, corresponding to the scrutiny envisioned in the distinctive review grounds developed casuistically at common law, now codified and mostly specified in section 6 of the Promotion of Administrative Justice Act (PAJA); such as failing to apply the mind, taking into account irrelevant considerations, ignoring relevant considerations, acting for an ulterior purpose, in bad faith, arbitrarily or capriciously etc. The court must nonetheless still consider whether, apart from the flawed reasons of or any irregularity by the arbitrator, the result could be reasonably reached in light of the issues and the evidence. Moreover, judges of the Labour Court should keep in mind that it is not only the reasonableness of the outcome which is subject to scrutiny. As the SCA held in Herholdt, the arbitrator must not misconceive the inquiry or undertake the inquiry in a misconceived manner. There must be a fair trial of the issues.[32] However, sight may not be lost of the intention of the legislature to restrict the scope of review when it enacted section 145 of the LRA, confining review to defects as defined in section 145(2) being misconduct, gross irregularity, exceeding powers and improperly obtaining the award. Review is not permissible on the same grounds that apply under PAJA. Mere errors of fact or law may not be enough to vitiate the award. Something more is required. To repeat: flaws in the reasoning of the arbitrator, evidenced in the failure to apply the mind, reliance on irrelevant considerations or the ignoring of material factors etc must be assessed with the purpose of establishing whether the arbitrator has undertaken the wrong enquiry, undertaken the enquiry in the wrong manner or arrived at an unreasonable result. Lapses in lawfulness, latent or patent irregularities and instances of dialectical unreasonableness should be of such an order (singularly or cumulatively) as to result in a misconceived inquiry or a decision which no reasonable decision-maker could reach on all the material that was before him or her.[33] Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the inquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrators conception of the inquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result. The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA. Provided the right question was asked and answered by the arbitrator, a wrong answer will not necessarily be unreasonable. By the same token, an irregularity or error material to the determination of the dispute may constitute a misconception of the nature of the enquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone. The arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination. (My emphasis)

ile a complete record of arbitration proceedings within 60 days in terms of clause 11.2.3 of Practice Manual

JR874/13

Shaik v Commission for Conciliation, Mediation and Arbitration and Others (JR874/13) [2016] ZALCJHB 239 (8 July 2016)

Clause 11.2.3 of the Practice Manual makes it abundantly clear that if the Applicant fails to file the record within the prescribed period of 60 days, the Applicant will be deemed to have withdrawn the application, unless the Applicant has during that period requested the Respondents consent for an extension of time and consent has been granted.

JR173/2014

Pikitup Johannesburg Soc Limited v Tokiso Dispute Settlement (Pty) Ltd and Others (JR173/2014) [2016] ZALCJHB 179 (17 May 2016)

[26] While the wording of section 33(1) of the Arbitration Act and section 145(2) of the LRA is virtually identical, the standard for review in the Arbitration Act is not the same as that of the LRA. Section 33(1) of the Arbitration Act is not infused with a reasonableness standard.

Clear Channel Independent (Pty) Ltd v Savage NO and Another (2009) 5 BLLR 439 (LC) at para 36.

[29] It was incumbent upon the Applicant to properly submit grounds for review in terms of section 33(1) of the Arbitration Act in its founding affidavit. In light of the differing standards of review in section 33(1) of the Arbitration Act and s 145 of the LRA, a failure to do so would indeed constitute a fatal defect. It does not suffice to simply make general submissions or allegations of gross irregularities on the part of the Second Respondent.

gross irregularity still has the meaning attributed to the term inEllis v Morgan and Goldfields Investment. That means it ispurely procedurebased. It has nothing to do with outcome. It can only be invoked where, as a result of something that went wrong procedurally, the aggrieved party can be said to not to have had a fair trial. Under the LRA, on the other hand, gross irregularity is now also focused on outcome, albeit that it is still clearly distinguishable from an appeal.

Private Arbitration: Arbitration Act

Lufuno Mphaphuli and Associates (Pty) Ltd v Andrews and Another 2009 (4) SA 529 (CC); 2009 (6) BCLR 527 (CC).

Brand, FDJ "Judicial Review of Arbitration Awards" (2014)Stell LR2 247-264.

Telcordia Technologies Inc v Telkom SA Ltd[2006] ZASCA 112;2007 (3) SA 266(SCA) at para 51;National Union of Mineworkers obo Employees v Grogan NO and Another(2010) 31ILJ1618 (LAC) at para 33.

errors in relation to the facts

JA12/2015

Rustenburg Platinum Mines Limited (Amandelbult Section) v NUM obo Monageng and Others (JA12/2015) [2016] ZALAC 21 (26 May 2016)

Head of Department of Education v Mofokeng and Others [2015] 1 BLLR 50 (LAC)

Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the inquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrators conception of the inquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it willex hypothesibe material to the determination of the dispute. A material error of this order would point to at least aprima facieunreasonable result. The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA. Provided the right question was asked and answered by the arbitrator, a wrong answer will not necessarily be unreasonable. By the same token, an irregularity or error material to the determination of the dispute may constitute a misconception of the nature of the enquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone. The arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination

[13] What is therefore required when dealing with gross irregularities is firstly to determine the materiality of the error or irregularity and secondly to determine whether that irregularity resulted in an unreasonable outcome.

error of law

CA17/2014

Democratic Nursing Organisation of South Africa (DENOSA) obo du Toit and Another v Western Cape Department of Health and Others (CA17/2014) [2016] ZALAC 15; (2016) 37 (ILJ) 1819 (LAC) (12 May 2016)

City of Johannesburg Metropolitan Municipality v Gauteng development Tribunaland Others2010 (6) SA 182(CC) at para 91; see also the remarks of Malan J (as he then was) with regard to the implications ofHira, suprain the constitutional dispensation inSouth African Jewish Board of Deputies v Sutherland N.O and Others2004 (4) SA 368(W) at para 27.

courts are given the power to review every error of law provided that it is material; that is that the error affects the outcome.

Band of dicisions

DA17/14

Ethekwini Municipality v Hadebe and Others (DA17/14) [2016] ZALAC 14; [2016] 8 BLLR 745 (LAC) (10 May 2016)

InGold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and Others (Gold Fields) [2014] 1 BLLR 20 (LAC)

where a gross irregularity in the arbitration proceedings is alleged, the enquiry extends to whether the result was unreasonable, in particular, whether the decision arrived at by the arbitrator is one that falls within a band of decisions to which a reasonable decision-maker could come on the available material

[25] Therefore, the upshot of bothHerholdtandGoldfieldsis that a process failure on the part of a commissioner does not in itself render an award unreasonable. In order for it to be unreasonable, it has to be established that such failure caused the result of the award to be unreasonable. Thus, a process failure is of no consequences if the final result of the award is, nevertheless, capable of reasonable justification.

Bias

JR1706/13

Mkhonza and Another v Scottish Clothing Company and Others (JR1706/13) [2016] ZALCJHB 130 (5 April 2016)

SA Commercial Catering & Allied Workers Union & others v Irvin & Johnson Ltd (Seafoods Division Fish Processing) 2000 (3) SA 705 (CC); (2000) 21 ILJ 1583 (CC), at 714-5

[14] The Court inSarfufurther alluded to the apparently double requirement of reasonableness that the application of the test imports. Not only must the person apprehending bias be a reasonable person, but the apprehension itself must in the circumstances be reasonable. This two-fold aspect finds reflection also inS v Roberts, decided shortly afterSarfu, where the Supreme Court of Appeal required both that the apprehension be that of the reasonable person in the position of the litigant and that it be based on reasonable grounds. [15] It is no doubt possible to compact the "double" aspect of reasonableness inasmuch as the reasonable person should not be supposed to entertain unreasonable or ill-informed apprehensions. But the two-fold emphasis does serve to underscore the weight of the burden resting on a person alleging judicial bias or its appearance. [16] The "double" unreasonableness requirement also highlights the fact that mere apprehensiveness on the part of a litigant that a Judge will be biased - even a strongly and honestly felt anxiety - is not enough. The court must carefully scrutinize the apprehension to determine whether it is to be regarded as reasonable. In adjudging this, the court superimposes a normative assessment on the litigant's anxieties. It attributes to the litigant's apprehension a legal value and thereby decides whether it is such that it should be countenanced in law. [17] The legal standard of reasonableness is that expected of a person in the circumstances of the individual whose conduct is being judged.

Goldfields Mining South Africa v Moreki (2014) 35 ILJ 943 (LAC).

record and transcript of the proceedings are lost

JR516-11, J2735/13

Cashbuild (Pty) Ltd v Merwe NO and Others (JR516-11, J2735/13) [2016] ZALCJHB 108 (22 March 2016)

Shoprite Checkers Ltd v Commission for Conciliation, Mediation and Arbitration & Others (2010) 31 ILJ 1337 (LC) at para 10.

an Applicant has a fundamental right to review before the Labour Court and, further, it is not the Applicants fault that the record and transcript of the proceedings are lost. It will be unfair to dismiss the application as it was not the applicants fault that no record was provided. When deciding to refer the matter back to the CCMA one must consider not only the interests of the third respondent but those of the applicant as well. The choice is either to let the award in the third respondents favour stand, or set it aside and to refer the matter for a hearingde novo. If the award is allowed to stand, then the applicants right of review will be completely frustrated, thereby prejudicing it.

Different tests

JR923/2013

Steenwerke v Bobbejan N.O. and Others (JR923/2013) [2016] ZALCJHB 60 (22 February 2016)

Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ 2405 (CC) at para 110.

whether the decision reached by the arbitrator is one that a reasonable decision maker could not reached. The Constitutional Court very clearly held that the arbitrator's conclusion must fall within a range of decisions that a reasonable decision maker could make.

In short: A reviewing court must ascertain whether the arbitrator considered the principal issue before him/her; evaluated the facts presented at the hearing and came to a conclusion that is reasonable.

R1279/09b

National Commissioner of the South African Police Service v Radebe and Others (JR1279/09b) [2016] ZALCJHB 54 (9 February 2016)

The first respondent (Sipho Radebe) did not make his own decision in arbitrating the dispute, he, however cut and pasted the previous arbitration award as if it was his own. Matter is remitted back to the second respondent for arbitration hearing afresh before an arbitrator other than the first respondent.

Head of the Department of Education v Mofokeng [2015] 1 BLLR 50 (LAC), paragraph 33. Following the Supreme Court of Appeal judgment in Herholdt [2013] 11 BLLR 1074 (SCA). and the Labour Appeal Courts judgment in Gold Fields [2014] 1 BLLR 20 (LAC).

Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the inquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrators conception of the inquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result.The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA. Provided the right question was asked and answered by the arbitrator, a wrong answer will not necessarily be unreasonable. By the same token, an irregularity or error material to the determination of the dispute may constitute a misconception of the nature of the enquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone. The arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination.

Shoprite Checkers v CCMA and others (2015) 36 ILJ 2908 (LC).

determining when the failure by an arbitrator to consider facts will be reviewable. The Court accepted the following mode of analysis:a. the first enquiry is whether the facts ignored were material, which will be the case if a consideration of them would (on the probabilities) have caused the commissioner to come to a different result;b. if this is established, the (objectively wrong) result arrived at by the commissioner is prima facie unreasonable;c. a second enquiry must then be embarked upon it being whether there exists a basis in the evidence overall to displace the prima facie case of unreasonableness; andd. if the answer to this enquiry is in the negative, then the award stands to be set aside on review on the grounds of unreasonableness (and vice versa). ... In summary: Where it is alleged in review proceedings that an arbitrator ignored certain material facts, the enquiry is whether indeed this was the case, and if so, whether these facts were material. If it is found that they were indeed ignored as alleged, and were material, it follows that the arbitrator would have come to a different conclusion had he taken them into account, and therefore the result arrived at would prima facie be unreasonable.

JR2467/10

SACCAWU obo Tsoku v Commission for Conciliation, Mediation and Arbitration and Others (JR2467/10) [2016] ZALCJHB 21 (26 January 2016)

Head of the Department of Education v Mofokeng and others[2015] 1 BLLR 50(LAC)at 60-1, para[33].

Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the inquiry.In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrators conception of the inquiry, the delimitation of the issues to be determined and the ultimate outcome.If but for an error or irregularity a different outcome would have resulted, it willex hypothesibe material to the determination of the dispute. A material error of this order would point to at least aprima facieunreasonable result. The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA. Provided the right question was asked and answered by the arbitrator, a wrong answer will not necessarily be unreasonable. By the same token, an irregularity or error material to the determination of the dispute may constitute a misconception of the nature of the enquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone. The arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination.

Review of a private arbitration award in terms of section 33(1) of the Arbitration Act 42 of 1965.

JR1342/12

Mkhize v Antrobus SC and Another (JR1342/12) [2015] ZALCJHB 398 (13 November 2015)

gross dereliction of duty alternatively gross incompetence and alternatively gross negligence in respect of, inter alia, payments made to the South African Revenue Services

SACCAWU v Pick n Pay Retailers Pty Ltd and others

[7] The specific grounds upon which a private arbitration award can be reviewed on account of the conduct of the arbitrator are those grounds (strictly interpreted) set out in s 33(1)(a) and (b) of the Arbitration Act, ie misconduct; gross irregularity; or excess of powers. Neither s 33 (just administrative action) nor s 34 (access to courts) of the Constitution apply directly to private arbitrations, and thus cannot serve as a basis for extending the grounds upon which a private arbitration award can be reviewed. In Lufuno Mphaphuli and Associates (Pty) Ltd v Andrews and another 2009 (4) SA 529 (CC), O'Regan J, writing for the majority, set out the policy basis for the limited scope of intervention in private arbitrations:'Courts should be respectful of the intention of the parties in relation to procedure. In so doing, they should bear in mind the purposes of private arbitration which include the fast and cost-effective resolution of disputes. If courts are too quick to find fault with the manner in which arbitration has been conducted, and too willing to conclude that the faulty procedure is unfair or constitutes a gross irregularity within the meaning of section 33(1), the goals of private arbitration may well be defeated.'This cautionary sentiment is reflected in the conclusion reached by Van Dijkhorst AJA in Stocks Civil Engineering:'A court is entitled on review to determine whether an arbitrator in fact functioned as arbitrator in the way that he upon his appointment impliedly undertook to do, namely by acting honestly, duly considering all the evidence before him and having due regard to the applicable legal principles. If he does this, but reaches the wrong conclusion, so be it. But if he does not and shirks his task, he does not function as an arbitrator and reneges on the agreement under which he was appointed. His award will then be tainted and reviewable.... An error of law or fact may be evidence of the above in given circumstances, but may in others merely be part of the incorrect reasoning leading to an incorrect result. In short, material malfunctioning is reviewable, a wrong result per se not (unless it evidences malfunctioning). If the malfunctioning is in relation to his duties that would be misconduct by the arbitrator as it would be a breach of the implied terms of his appointment.'

Application to dismiss review Rule 11.

JR698/2013; J271/2015

Edcon (Pty) Limited v Commission for Conciliation, Mediation and Arbitration and Others; In re: Thulare and Others v Edcon (Pty) Limited (JR698/2013; J271/2015) [2015] ZALCJHB 392; (2016) 37 ILJ 434 (LC) (13 November 2015)

No general principle that a respondent must place an applicant on terms before seeking dismissal of review, especially where Rule 16.2 is of application which allows such applicant to enrol its review for default judgment

Grounds for review

JR1103/2009

South African State And Allied Workers' Union and Another v General Service Public Sector Bargaining Council and Others (JR1103/2009) [2015] ZALCJHB 253 (7 August 2015)

Naidoo v NBCCI [2012] 9 BLLR 915 (LC)

In Naidoo v NBCCI[6] it was held that it is incumbent on an applicant in a review application to establish the grounds for review with reference to the award and the evidence. An applicants bald statement that an arbitrator has failed to apply his/her mind is insufficient. The factual basis for the allegation must be given.[7]

J3277/12

Wholesale Housing Supplies (Pty) Ltd v Commission for Conciliation Mediation And Arbitration and Others (J3277/12) [2015] ZALCJHB 239 (6 August 2015)

13] What this analysis requires where what is at issue is any assessment of whether a reviewable defect and/or irregularity has occurred or what its impact is to be upon an award, is a determination first of the nature of the error alleged to have been committed by the arbitrator and any distorting effect that the error may have had on the outcome of the arbitrators award. If it is reasonably clear that but for the identified error relied upon the award would have been different or cannot stand on its own reasoning, then it is prima facie an unreasonable award. The court must then have regard to the issues and the evidence as a whole to determine whether or not the outcome is nevertheless capable of being sustained on the Sidumo test.

Department of Education v Mofokeng & others [2015] 1 BLLR 50 (LAC)

The determination of whether a decision is unreasonable in its result is an exercise inherently dependent on variable considerations and circumstantial factors. A finding of unreasonableness usually implies that some other ground is present, either latently or comprising manifest unlawfulness. Accordingly, the process of judicial review on grounds of unreasonableness often entails examination of interrelated questions of rationality, lawfulness and proportionality, pertaining to the purpose, basis, reasoning or effect of the decision, corresponding to the scrutiny envisaged in the distinctive review grounds developed at common law, now codified and mostly specified in section 6 of the promotion of administrative Justice act (PAJA).; such as failing to apply the mind, taking into account irrelevant considerations, ignoring relevant considerations, acting for an ulterior purpose, in bad faith arbitrarily or capriciously etc . The Court must nonetheless still consider with apart from the flawed reasons of or any irregularity by the arbitrator, the result could be reasonably reached in light of the issues and the evidence (at paragraph 31).Further:Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the enquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had on the arbitrators conception of the enquiry, the determination of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the determination of the dispute. The material error of this order would point to at least a prima facie unreasonable result.

further re-emphasized that the reviewing court should intervene in circumstances where the decision of the Commissioner is entirely disconnected with the evidence or is unsupported by any evidence and involves speculation by the Commissioner

Constructive dismissal

JR1579/11

Armaments Corporation of South Africa Ltd v Nowosenetz N.O. and Others (JR1579/11) [2015] ZALCJHB 241 (5 August 2015)

1) review of first-stage of constructive dismissal is whether facts establish jurisdiction, (2) review of second-stage of constructive dismissal is reasonableness.

JR 2610/12

Sepang v Dibakwane and Others (JR 2610/12) [2015] ZALCJHB 235 (4 August 2015)

In Goldfields Mining South Africa (Pty) Ltd v CCMA

held that provided that the arbitrator gave the parties a full opportunity to state their respective cases at the hearing, identified the issue that he or she was required to arbitrate, understood the nature of the dispute and dealt with its substantive merits, the function of the reviewing court is limited to a determination whether the arbitrators decision is one that could not be reached by a reasonable decision-maker on the available material

Herholdt, the SCA

incomplete record -

JA 41/14

Henred Fraunhauf (Pty) Ltd and Another v Marcus N.O and Others

record showing that applicant relying on evidence not forming part of the transcribed record - Impossible to determine merits of dispute in the circumstance

HEROLDT TEST

CA 12/2014

GEORGE ALEXANDER GREY

Herholdt v Nedbank Ltd (2013) 34 ILJ 2795 (SCA)

For a defect in the conduct of the proceedings to have amounted to a gross irregularity as contemplated by Section 145 (2)(ii), the arbitrator must have misconceived the nature of the enquiry or arrived at an unreasonable result. A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of any consequence if their effect is to render the outcome unreasonable

Sidumo test

JA01/14

FIRST GARMENT RENTAL (PTY) LTD

Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2007] ZACC 22; 2008 (2) SA 24 (CC); [2007] 12 BLLR 1097 (CC) where the Constitutional Court held at para 110 that To summarise, Carephone (Pty) Ltd v Marcus NO and Others [1998] 11 BLLR 1117 (LAC) held that s 145 of the LRA was suffused by the then constitutional standard that the outcome of an administrative decision should be justifiable in relation to the reasons given for it. The better approach is that s 145 is now suffused by the constitutional standard of reasonableness. That standard is the one explained in Bato Star (Fishing (Pty) Ltd v Minister of Environmental Affairs and Others [2004] ZACC 15; 2004 (4) SA 490 (CC). Is the decision reached by the commissioner one that a reasonable decision-maker could not reach? Applying it will give effect not only to the constitutional right to a fair labour practices, but also to the right to administrative action which is lawful, reasonable and procedurally fair.

If award was reviewable, that the dispute was not automatically remitted to the arbitrating authority:

It would depend on the nature of the dispute; the reasons of the court in support of the decision to review; the relief sought; as well as any other factors relevant to the dispute.

Variation of Award by arbitrator, Without notice to one of parties

Audi alteram partem principle not infringed where arbitrator corrected manifest error on basis of evidence that emerged at arbitration itself.

Grounds

Applicant on review could not simply make a broad allegation that an arbitrator had failed to apply their mind to the facts. Applicant has to substantiate the allegation by alluding to those facts which it claimed the arbitrator failed to consider.

s 145(2)(a)(ii)

For a defect in the conduct of the proceedings to amount to a gross irregularity as contemplated by s 145(2)(a)(ii) the arbitrator must have misconceived the nature of the enquiry or arrived at an unreasonable result. A result would only be unreasonable if it were one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to particular facts, were not in and of themselves sufficient for an award to be set aside but were only of any consequence if the effect was to render the outcome unreasonable.

Record not cept / distroyed

And also taking into account the circumstances of the matter, were reason enough to set the award aside and remitted the matter back to the first respondent for hearing de novo.

Herholdt v Nedbank Ltd (Congress of Trade Unions of SA as amicus curiae) (2013) 34 ILJ 2795; Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others [2014] 1 BLLR 20. [Commercial Workers Union of SA v Tao Ying Metal Industries and Others 2009 (2) SA 204: did not constitute a binding precedent for what the applicant referred to as the process related test on review]. Accordingly, the test to be applied in determining the application was as set out in SCA in Herholdt and the LAC in Goldfields.

On consideration of the totality of the evidence, the decision of the commissioner that the applicant had failed to discharge the onus of proving that the dismissal of the employee was fair, was not one that could be said to be a decision to which no reasonable arbitrator could come.

Quantification of compensation.

Arbitrator awarding compensation but failing to give reasons for his quantification of compensation. Not a reviewable irregularity.

Record of Arbitration

No referance to the record in terms of the application, Rule 7A need to relate to such grounds.

Edcon Ltd v Pillemer NO and Others [2010] 1 BLLR 1 (SCA) had decided that the standard of review in Sidumo was conceptually no different to what had previously applied since the earlier decision in Carephone (Pty) Ltd v Marcus NO and Others (1998) 19 ILJ 1425 (LAC).

the line between a review on the grounds of substantive reasonableness and an appeal on the merits was a fine one and at times difficult to draw.

The threshold for interference was lower than that; it being sufficient that the commissioner had failed to apply his mind to certain of the material facts or issues before him, with such having potential for prejudice and the possibility that the result may have been different

duties of a commissioner was to determine the material facts and then to apply the provisions of the LRA had to be determined objectively, with due regard to all the evidence that was before him or her and what the issues were.

REVIEW test??

whether the decision, based on the material admitted as evidence was one which a reasonable decision-maker could not reach

Legality, reasonableness and fairness of arbitration

circumstances of infringement

nature of job

personal circumstances

previous disciplinary records

Gravity of misconduct iro continued employment relationship

Seriousness of misconduct

each case to be decided on totality of circumstances

Sanction:

Commissioner makes value judgment on own sense of fairness

Guilt:

reasonable decision maker

A "better" decision is irrelevant

Scope:

reasonable outcome that which were justifiable in relation to the reasons given

Court:

Not to substitute view of own opinion

fairness sanction; was there a breach of workplace rule; Was there a reasonable response when considering evidence in front of them

Commissioner:

Misconduct exist

private arbitration review in terms of s 33 of Arbitration Act; Act review principles apply

Sidumo test not applicable

Test for

Issue before the commissioner one that went to jurisdiction of the commissioner, i.e. whether there had been a dismissal.

filed late; does not stay enforcement of proceedings, urgency self created

Appl to stay proceedings

record

Employee failed in his duty to provide court with full transcript of arbitration proceedings; Essential evidence to evaluate commissioners decision not submitted; Application dismissed

Test

The court further held that an important aspect of the reasonable decision-maker test is for the emphasis to fall on the range of reasonable outcomes and not on the correctness of the outcome. This means that a decision unsupported by any evidence or supported by insufficient evidence, or where there is a glaring inconsistency between the facts established by the commissioner and the final conclusion arrived at, will be unreasonable and stands to be set aside.

Sidumo test expanded

"to defer to the decision of the employer on the basis that the employer was better placed to make a decision. That approach would not be correct"

Right to an interpreter

REVIEW test?

The court, by necessity, had to scrutinize the reasons of the commissioner not to determine whether the result was correct; or for that matter substantively reasonable, but to determine whether there was a latent irregularity, that is, an irregularity that had taken place within the mind of the commissioner, which would only be ascertainable from his or her reasons.

Incomplete proceedings

undesirable for the court to entertain applications to review and set aside rulings made in uncompleted proceedings.

Biased

Technical

Not same requirements as on factual issues review

Other case law cited

Telcordia Technologies Inc v Telkom SA Ltd 2007 (3) SA 266 (SCA)

JR917/06

Steyn v Middelburg Ferrochrome (A Division of Samcor Limited) & Others

Private Arbitration

Narrow test

Arbitration

referred merits of matter to be heard by another arbitrator; second arbitrator not bound by the first arbitrators ruling on admissibility; ruling; reviewed and set aside

where a party alleges a gross irregularity, this allegation must be made clear in the review application

Reasonable period; Parties applying for review of awards must prosecute their applications to finality within a reasonable period of time or face dismissal of their applications; Justice and fairness the key criteria for determining whether or not to dismiss application

Court has a discretion to substitute an award or a ruling made by a commissioner

(1) Where the end result is in any event a foregone conclusion and it would merely be a waste of time to order that tribunal or functionary to reconsider the matter; (2) Where a further delay would cause unjustifiable prejudice to the applicant; (3) Where the functionary or tribunal has exhibited bias or incompetence to such a degree that it would be unfair to require the applicant to submit to the same jurisdiction again; (4) Where the court is in as good a position as the administrative body to make the decision itself.

Missing record

employer was in a position to demonstrate its grounds for review on portions of the available records and that it was not prejudiced and should gain no advantage simply because certain portions, not relevant to its grounds for review, were missing.

procedure

no record

referred back to CCMA

it was competent to review the arbitrators decision even though it was interlocutory

refuse condonation

Record

the employer was obliged in terms of the LC Rules to transcribe the Commissioners handwritten notes as part of the record

CCMA Ruling

Ruling on condonation not award

A ruling, like any act other than an award, must be reviewed in terms of s158(1)(g) of the LRA