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Labour Court Review – A remedy when Arbitrations go awry

The Commission for ConciliationA process at the CCMA where a commissioner assists parties to a dispute in attempting to settle the matter Mediation and Arbitration (“CCMA”) was established by the Labour
Relations Act, 66 of 1995. The CCMA specifically exists as a speedy and cost-effective forum for
labour disputes to be dealt with. Because of the relative ease associated with referring the matter to
the CCMA, the various offices of the CCMA in South Africa deal with thousands of matters every
year.

CCMA matters are dealt with by CCMA Commissioners who are bound by the provisions of the
Labour Relations Act. Once arbitration proceedings have been concluded the Commissioner will
issue an award which is binding between the parties. Unfortunately, it is a frequent occurrence that
a party to arbitration proceedings may feel that there matter was not dealt with justly or fairly.

For this reason the Labour Relations Act has made provision for a party who is dissatisfied with an
arbitration award to apply to the Labour Court to have the arbitration proceedings Reviewed.

 

The Process Involved

A Review Application (“Review”) is launched by means of an Application to the Labour Court. The
Application must be supported by an Affidavit wherein you set out why you believe the arbitration
proceedings must be Reviewed.

What is very important to bear in mind is the fact that the Labour Court is very strict on adherence
to the time periods set out in the Labour Relations Act. It is therefore of extremely high importance
to note that a Review must be launched within six weeks of receiving the Arbitration Award.

If the Review is not launched within six weeks, the Court may condone the late launching of the
Review on good cause shown. The facts of every case are different and due consideration will be
given to the reasons why the Review was not launched within six weeks.

Once the Review has been launched, the CCMA will provide to the Labour Court all the records of
the proceedings under Review. If the arbitration was recorded mechanically, the mechanical
recording must be transcribed.

As soon as the transcription of the mechanical recording has been received, the person applying for
Review may elect to file an additional affidavit in support of the Review based on what is contained
in the transcription.

Once the person applying for the Review has filed an additional affidavit, or a notice stating that
they will not be filing an additional affidavit, the other interested parties to the Review may then
decide to oppose the matter and they will file affidavits in support of their opposition.

Once all affidavits have been exchanged between the parties and filed in the Court file, the Court
conducts the hearing and makes a judgment.

 

When can you apply for review?

In terms of the Labour Relations Act, there are three grounds upon which a Review may be launched. These grounds are as follows:

1. The Commissioner committed misconduct in relation to the duties of the Commissioner as an arbitrator;
2. The Commissioner committed a gross irregularity in the conduct the arbitration proceedings;
3. The Commissioner exceeded the his or her powers.

 

What may the Labour court do when considering a review?

Once all relevant parties have had an opportunity to address the Court, the Court will prepare a judgment wherein the Court will do one of two things:

1. The Court may determine the dispute in the manner that it considers appropriate, which means the Court may make an order which replaces the order made by the arbitrator; or
2. The Court may make any order it considers appropriate about the procedures to be followed to determine the dispute. This generally means that the matter will be referred back to the CCMA for a new arbitration hearing to be held in front of a different Commissioner.

About the Author

Mervyn Vermeulen
Mervyn Vermeulen
administrator

Mervyn Vermeulen is the founder and director of Vermeulen Attorneys. He specializes in Family Law, Labour Law, and Litigation.

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