The suggestion by justice John Murphy that the Labour Appeal Court should do what its name implies, and have the power of appeal over awards of the CCMA, must be welcomed.
Most of us have been reared on the notion that the power of review is simpler than an appeal. Reviews should really only apply when there has been a ‘defect’ in any arbitration proceedings.
The most serious defect would be an offence referred to in Part 1 to 4, or section 17, 20 or 21 (in so far as it relates to the aforementioned offences) of Chapter 2 of the Prevention and Combating of Corrupt Activities Act, 2004.
Otherwise in terms of the LRA s 145 a ‘defect’ means the award was improperly obtained or that commissioners
#1 misbehaved in relation to their duties;
#2 committed a gross irregularity in the conduct of the arbitration proceedings or
#3 exceeded their powers.
Ever since the LRA came into force in November 1996 there have been arguments over the precise powers of the Labour Court to review and set aside awards.
The stage has now been reached where reviews have focussed not only on the process but also the outcome itself. In the landmark decision in Sidumo the Constitutional Court decided that an award should only be set aside if the award could not have been made by a reasonable commissioner. This has encouraged lawyers from both sides to challenge the process by which the award was arrived at and not concentrate on the outcome as such.
In the LAC judgment of Afrox Healthcare Ltd v CCMA, [2012] JOL 28779 Mlambo JP, as he then was, set aside an award on review after deciding that the test of the reasonable commissioner was nothing more than the ‘rationality’ test in different words and that the test remains as to whether there is a rational connection between the evidence and conclusion reached.
Thanks to Siber Ink Publishers and SILCS issue 2012:13 a recent LAC case has been brought to my attention. The judgment has not yet been reported nor is it available via Saflii. Click here for further information as a subscription to SILCS is highly recommended. Alternatively send an email for further information.
Relying on the summary in SILCS of Herholdt v Nedbank Ltd, dated 4 May 2012, it appears that Murphy AJA thought the time had arrived to reconsider the review process and replace it with an appeal system because the entire review process had become far to complex, technical and legalistic.
The employee was dismissed for an alleged conflict of interest but reinstated by the CCMA. See Herholdt / Nedbank Group [2009] 5 BALR 473 (CCMA).
On review the Labour Court set aside the reinstatement and the employee appealed to the LAC. Bear in mind that in such circumstances the LAC has to put itself in the position of the CCMA and ‘pretend’ that it is still dealing with a review of an award even though there has been an appeal against the judgment of the Labour Court.
The present system boils down to the reviewing court having to decide objectively the reasonableness of an award having regard to the issues and all the evidence that was before the CCMA.
According to the summary from SILCS
“If the conduct of the commissioner prevented a fair trial of the issues, even if perfectly well-intentioned and bona fide, though mistaken, then such conduct would amount to a gross irregularity, and that would be enough to successfully found a review under s 145(2) of the LRA.”
Murphy AJA seems to have tentatively recommended that there needs to be a rethink and that justice might be better served if the relief against awards takes the form of an appeal rather than a review.
In its own terms the reported suggestion by Murphy AJA makes sense: it would enable reviewing/appeal judges to deal with any aspect of an award that they find problematic, without the need to justify it in a technical sense. However, it would do away with the purpose of “expeditious” dispute resolution, as captured in the intended provision for arbitration awards that will really be final and binding (not subject to appeal) unless the procedure was fatally flawed. This objective was revived to a significant extent by Sidumo, making it much more difficult to overturn awards that a court disagrees with by applying a far stricter criterion. Will it really serve the purposes of the LRA to turn the CCMA and bargaining councils (in effect) into lower courts where every hearing has the status of a trial?
Thanks Darcy and I agree that it could be problem until it is appreciated that most unfair dismissal disputes have two sides to them.
Although employers have the right to dismiss they must do so for a reason that is valid, lawful and fair. Apart from proving the validity and fairness of the reason employers must comply with the common law and the BCEA and also give reasonable notice (or pay instead)unless they will be able to prove that the employee materially breached the contract (gross misconduct).
A balance is then achieved between the rights of both parties. At present the approach to dismissals still seems to ‘all or nothing’ in the sense that the one party wins and other loses.
Once employers, arbitrators and judges appreciate the need to achieve that balance it is hoped that far fewer disputes will be referred and then it could make sense to have appeals instead of the over-technical approach that is now being adopted during review proceedings.
I also believe a case could be made for scrapping the distinction between substance and procedure and make them factors in the final determination of fairness. As I understand it this is how Australia deals with this problem.
The new CCMA guidelines seem to be going in the same direction.
I can appreciate the stress that is placed on arbitrators to ensure that they comply with the law, the guidelines and binding judgments for fear of being upset and criticised if the matter is reviewed.
It could even be that the fear of such a review tends to favour employers as they are usually better able to afford the legal costs of review.
Thanks to Siber Ink Publishers the full judgment of Murphy AJA is now available –
LAC judgment in Herholdt v Nedbank Ltd case no: DA 20/10 dated 4 May 2012
Thanks to Saflii it is now possible to read the latest SCA judgment – Herholdt v Nedbank where the suggestion of an appeal system was rejected by appeal justices Cachalia and Wallis.