When reviewing CCMA awards in terms of s 145 of the LRA there is a distinct likelihood of an award being reviewed and set aside if any one of these seven crucial questions is not answered in the affirmative. Whilst these are not the only questions they are accepted as being the most important questions.

Another recent question raised by the LAC relates to the refusal or failure of the commissioner to assist parties who are not legally represented, also referred to as the ‘helping hand principle’.

With regard to rulings it now appears to be settled that the test to be applied in terms of s 158(1)(g) of the LRA is the objective test and whether the decision was correct and not the reasonableness test.

See also:

Seven crucial questions

  • Did the commissioner understand the nature of the dispute?
  • Did the commissioner deal with the substantial merits of the dispute?
  • Were the parties allowed a full opportunity to have their say relating to the actual dispute?
  • Was the hearing dealt with by applying the minimum of legal formalities?
  • Was the true nature of the dispute determined by the commissioner, even if only after all the evidence was presented?
  • Was the award one that could not have been made by a reasonable commissioner based on all the evidence presented in the hearing?

Authority

Duncanmec (Pty) Ltd v Gaylard NO

(CCT284/17) [2018] ZACC 29; 2018 (11) BCLR 1335 (CC); [2018] 12 BLLR 1137 (CC); 2018 (6) SA 335 (CC); (2018) 39 ILJ 2633 (CC) (13 September 2018) with emphasis added.

“[40] As is apparent from Sidumo, the genesis of the reasonableness standard of review is section 33(1) of the Constitution which confers on everyone the right to administrative action that is lawful, reasonable and procedurally fair. Since an award like the one we are concerned with here constitutes administrative action, the Constitution requires it to be procedurally fair, lawful and reasonable. This means that an award that fails to meet these requirements is liable to be set aside on review. These requirements are in addition to the grounds of review listed in section 145 of the LRA. However, to some extent the latter grounds may overlap with the constitutional requirements. But the reasonableness standard is sourced from section 33 of the Constitution alone. It does not form part of the overlap.

[41] Sidumo cautions against the blurring of the distinction between appeal and review and yet acknowledges that the enquiry into the reasonableness of a decision invariably involves consideration of the merits. So as to maintain the distinction between review and appeal this Court formulated the test along the lines that unreasonableness would warrant interference if the impugned decision is of the kind that could not be made by a reasonable decision-maker.

[42] This test means that the reviewing court should not evaluate the reasons provided by the arbitrator with a view to determine whether it agrees with them. That is not the role played by a court in review proceedings. Whether the court disagrees with the reasons is not material.

[43] The correct test is whether the award itself meets the requirement of reasonableness. An award would meet this requirement if there are reasons supporting it. The reasonableness requirement protects parties from arbitrary decisions which are not justified by rational reasons.”

Sidumo v Rustenburg Platinum Mines Ltd

[2007] ZACC 22 (CC) at para 110:

“To summarise, Carephone held that section 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 section 145 is now suffused by the constitutional standard of reasonableness. That standard is the one explained in Bato Star: 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 fair labour practices, but also to the right to administrative action which is lawful, reasonable and procedurally fair.”

Herholdt v Nedbank

[2013] ZASCA 97 (SCA) at para 25 per MJD Wallis JA:

“In summary, the position regarding the review of CCMA awards is this:

A review of a CCMA award is permissible if the defect in the proceedings falls within one of the grounds in s 145(2)(a) of the LRA.

For a defect in the 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 inquiry 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.”

Goldfields Mining SA (Kloof Gold Mine) (Pty) Ltd v CCMA

[2013] ZALC 28; [2014] 1 BLLR 20 (LAC), at para 20 per Waglay JP.

Failing to consider a gross irregularity in the above context would mean that an award is open to be set aside where an arbitrator

(i) fails to mention a material fact in his award; or

(ii) fails to deal in his/her award in some way with an issue which has some material bearing on the issue in dispute; and/or

(iii) commits an error in respect of the evaluation or considerations of facts presented at the arbitration.

The questions to ask are these:

(i) In terms of his or her duty to deal with the matter with the minimum of legal formalities, did the process that the arbitrator employed give the parties a full opportunity to have their say in respect of the dispute?

(ii) Did the arbitrator identify the dispute he was required to arbitrate(this may in certain cases only become clear after both parties have led their evidence)?

(iii) Did the arbitrator understand the nature of the dispute he or she was required to arbitrate?

(iv) Did he or she deal with the substantial merits of the dispute? and

(v) Is the arbitrator’s decision one that another decision-maker could reasonably have arrived at based on the evidence?10.

Head of the Department of Education v Mofokeng

[2014] ZALAC 50; [2015] 1 BLLR 50 (LAC), Murphy AJA said the following at paras 30 – 33 (inclusive) [with bullet points added]:

“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 [5] and
    • this court in Goldfields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and others[6]

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.[7]

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 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.[11]

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.

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.[12]

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 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.[13]

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.[14]”