Labour Court
Review Information
CCMA awards are final and binding and cannot be appealed against, with two exceptions. Section 24(7) of the Labour Relations Act (the LRA), arbitration awards about interpretation of agency shop agreements, and, to some extent, section
10(8) of the Employment Equity Act.
CCMA and Bargaining Council awards are subject to review by the Labour Court. This means that a party aggrieved by a decision made by a commissioner in an award may apply to the Labour Court in terms of section 145 of the LRA, to have it set aside on the basis of an alleged defect with that award.
The party who alleges a defect must file the application with the Labour Court within six weeks of the award being served.
The time limit is of the utmost importance as review applications, by their very nature, are considered as urgent
and the legislature,
when promulgating the LRA, had intended that review applications be dealt with on an urgent basis. If a party fails
to bring the review application within the compulsory
six-week period, that party is obliged to bring a further application for condonation of its non-compliance
Reviews In Terms Of Sec. 158
(1)The Labour Court may —
May not review any decision or ruling made during conciliation or arbitration proceedings conducted under the auspices of the Commission or any bargaining council before the issue in dispute has been finally determined by the Commission or the bargaining council, as the case may be, except if the Labour Court is of the opinion that it is just and equitable to review the decision or ruling made before the issue in dispute has been finally determined.
Under section 158 there is no time limits to file and only required to do so in reasonable time. Although in practice six weeks is considered a reasonable time.ulings are normally reviewed under sec 158 but it must be noted that the Labour Court
(g) subject to section 145, review the performance or purported performance of any function provided for in this Act on any grounds that are permissible in law;
(h) review any decision taken or any act performed by the State in its capacity as employer, on such grounds as are permissible in law;
(j) deal with all matters necessary or incidental to performing its functions in terms of this Act or any other law.
Review Is Not An Appeal
The Constitutional Court in the case of Sidumo & Another v Rustenburg Platinum Mines Ltd & Others, confirmed the test for the review of a Commissioner’s arbitration award as follows:
“Is the decision reached by the Commissioner one that a reasonable decision-maker could not reach? If so, it is reviewable. If not, it is not.”
- The Labour Court has exclusive jurisdiction to review CCMA awards, but the review application should not be seen as an appeal against the decision because arbitration awards are not subject to an appeal. Therefore, a review is not related to the merits of the matter but, rather, to the Commissioner’s conduct in reaching the decision being reviewed. The scope of the review is confined to how the arbitrator arrived at the specific decision and in making the application for review, the party is alleging there has been a defect in the proceedings
Stay of Execution
- In the case of Rustenburg Local Municipality v South African Local Government Bargaining Council and Others, the Labour Court emphasised that arbitration awards are final and binding and that it is trite that arbitration awards remain executable as against the unsuccessful party, despite a pending review. The court held that the onus to seek a stay of execution proceedings in anticipation of the hearing of a review application lies with the applicant.
- If the applicant is successful in an application for the stay of execution proceedings, such proceedings will be stayed until the review application has been argued and decided on. Section 145 of the LRA states that the institution of review proceedings does not suspend the operation of an arbitration award unless the applicant furnishes security to the satisfaction of the court, or successfully brings an application to stay such proceedings as mentioned above.
- If the applicant is successful in an application for the stay of execution proceedings, such proceedings will be stayed until the review application has been argued and decided on. Section 145 of the LRA states that the institution of review proceedings does not suspend the operation of an arbitration award unless the applicant furnishes security to the satisfaction of the court, or successfully brings an application to stay such proceedings as mentioned above.
Furnishing Security
- In practice, while a review application is unfolding, the other process of certifying the award occurs from the employee side. The employer is thereafter met with either contempt of court proceedings or a writ of execution.
- For a private litigant to file a review application, with security, will simply mean depositing the security amount into their legal practitioner’s trust account who can thereafter do the necessary to file the security.
Final Decision By The Labour Court
- If the award or ruling is ultimately set aside by the Labour Court, the Labour Court may make any order that it considers appropriate in relation to the procedure to be followed in determining the dispute. For example, the Labour Court may rule that the dispute be reverted back to the CCMA or BC and be heard afresh before a different CCMA or BC commissioner, or the Labour Court may rule that it will correct the CCMA or BC award or ruling itself as it sees fit, though the former is the more common occurrence.
Conclusion
- There is recourse for a party who wants to have their CCMA or BC award reviewed and set aside, even though such award is final and binding. The party wishing to do so must ensure that it has a proper basis for review that falls within the grounds as envisioned by Section 145 or 158 of the LRA, and the courts’ expansion of the considerations relevant to the review enquiry in terms of this section and must ensure that the required time limits are strictly complied with.
- It is recommended to consult if you want to take a matter on review. The main question that needs to be answered is whether the decision reached by the Commissioner is one that a reasonable decision-maker could not reach.