An Arbitration Award made by a Commissioner is binding and final. The Labour Relations Act (the “LRA”) does not allow a party to appeal against an arbitration award, but in terms of Section 145 of the LRA the Award may be taken on review.
1. What is an Arbitration Award?
An Arbitration Award is made where both parties attended the Arbitration proceedings. This is where the Commissioner will consider the evidence presented to him by both the Employer and the Employee and make a ruling.
2. Who may take a matter on review?
Either the employer; employee or their representatives may take a matter on review.
3. Time limits to review
If you wish to take a matter on review, you need to act quickly. The LRA states that a review must be lodged within 6 (six) weeks from the date when the arbitration award was received. The reason being that a review is seen as having the same nature as an urgent application and the legislature had the intention that it should be dealt with on an urgent basis.
If you are outside the 6 (six) week period as prescribed by law, you have to apply for condonation. (Condonation is explained in another article
4. To review or not to review?
It is recommended to consult with an attorney, if you want to take a matter on review. The reason being, that in order for a review application to succeed in the Labour Court the commissioner had to act irregular in such a way that the LRA deems his actions to be that of a misconduct.
One of the main questions that needs to be answered is whether the decision reached by the commissioner is one that a reasonable decision-maker could not reach?
This question was established in Sidumo v Rustenburg Platinum Mines Ltd & Others [2007] 12 BLLR 1097 (CC) . The courts further stated in Goldfields Mining SA [PTY] Limited v CCMA 2014 35 ILJ 943 (LC) that there are 5 [five] questions to ask when looking at the reviewability of the award.
- Did the commissioner give the parties full opportunity to have their say?
- Did the arbitrator identify the dispute he was required to arbitrate?
- Did the arbitrator understand the nature of the dispute?
- Did the arbitrator deal with the substantial issues of the dispute?
- Did the arbitrator reach a descision that another descision maker could reasonably have reached?
When deciding whether the matter is reviewable, the above needs to be considered. Taking a matter on Review is a Labour Court process and can become costly. One needs to be sure that the matter is indeed reviewable.
There are different ways in approaching an Arbitration Award and different ways in deciding what would be the correct approach. It is therefore important to always have all the relevant information and guidance before making a decision.
CONCLUSION:
When you are unhappy with the outcome of an arbitration award, the matter must be taken on review within 6 [six] weeks from receiving the arbitration award. It is therefore important to act quickly, if not, condonation would first have to be applied for and granted by court, before you may proceed with the Review Application.
