The Labour Court will review and set aside an arbitration award, and the exercise of a commissioner’s discretion, if, inter alia, it is shown that commissioners:

  • Misdirected themselves.
  • Applied the wrong principle.
  • Acted irregularly.
  • Acted capriciously.
  • Acted in bad faith.
  • Acted unfairly.
  • Reached a decision that a reasonable decision-maker could not reach when exercising their discretion.

These principles were applied in the recent Labour Court decision of the newly appointed Justice Steenkamp in Seardel Group Trading (Pty) Ltd t/a Romatex Home Textiles v Peterson & SACTWU unreported case C502/09 dated 2 September 2010.

Justice Steenkamp referred to Cowley v Anglo Platinum (unreported, JR 2219/2007, dated 18/11/2008, per Musi AJ), quoted with approval by Van Niekerk J in George v National Bargaining Council for the Chemical Industry (unreported, Petersen 97/2010, 25 August 2010) and stated as follows in para [13]:

“The commissioner’s exercise of discretion will be upset on review if the applicant shows, inter alia, that the commissioner committed a misdirection or irregularity, or that he/she acted capriciously, or on wrong principle, or in bad faith, or unfairly, or that in exercising the discretion the commissioner reached a decision that a reasonable decision-maker could not reach.”

Incidentally the report was marked “Not Reportable”.   The Labour Court upheld the termination of employment of a maintenance fitter who refused to perform maintenance duties at his normal rate during the employer’s annual shutdown period in December 2008 and January 2009.   Petersen was prepared to work at a higher rate, but not at his normal rate.

The CCMA commissioner had  reinstated Petersen after finding that “that work during the shutdown period was ‘illegal’ in terms of the BCEA and the Main Agreement”.

In paras [11] and [12] of his judgment Justice Steenkamp said the following:

“Section 20(9) of the BCEA provides: ‘An employer may not require or permit an employee to work for the employer during any period of annual leave’ (my underlining).   Clause 21.9 of the Main Agreement repeats this section verbatim. The Main Agreement is silent on the interplay, if any, between the annual shutdown and the time when employees may or should take annual leave.

Petersen’s contract of employment states that he is entitled to 20 working days’ annual leave after the completion of five years’ service. (He had ten years’ service at the time of dismissal).  There is no provision that annual leave must be taken at the time of the annual shutdown or that the two overlap”.