Skip to main content

Article 12/2025

The aim of this article is to provide the reader with a ready-to-use set of principles to determine, firstly, the grounds upon which an arbitration award may be set aside on review, secondly, the effect of flaws in reasoning, reliance on irrelevant factors and ignoring material factors when an arbitration award is considered on review and, thirdly, the effect of an error or irregularity in the arbitration award when taken on review.
_____________________________________

  • The failure of an arbitrator to apply his/her mind to material issues usually amounts to an irregularity.
  • Whether or not such irregularity will result in the setting aside of an arbitration award entails a further enquiry, namely, a determination whether such irregularity reveals a misconception of the true enquiry or resulted in an unreasonable action.
  • Flaws in reasoning, the failure to apply one’s mind, reliance on irrelevant factors and ignoring material factors are not enough to vitiate an award on review – same must be assessed with reference to, inter alia, the following questions:
    • whether or not this resulted in the wrong enquiry being undertaken, or
    • whether or not the enquiry was undertaken in the wrong manner, or
    • whether or not, as a result of the above, the arbitrator arrived at an unreasonable result
    • thus, what is required, is a determination as to whether or not singularly, or cumulatively, the above factors resulted in a decision that no reasonable decision-maker could reach
  • In short, what has to be determined is whether or not the aforesaid error or irregularity was material in respect of the result.
  • In determining whether or not such materiality in respect of the result exists, the following questions are relevant:
    • did it have a distorting effect on the arbitrator’s conception of the enquiry to be undertaken?
    • did it have a distorting effect on the delineation of the issues?
    • did it have a distorting effect on the ultimate outcome?
  • Provided the right question was asked and answered, a wrong answer will not necessarily be unreasonable.
  • What is required for an arbitration award to be set aside on review is a determination that the arbitrator has diverted from the correct path in conducting the arbitration and, as a result, failed to address the issues raised for determination.

See:

  • Head of Department of Education v Mofokeng and Others (2014) 25 SALLR 82 (LAC)
  • Herholdt v Nedbank Ltd (2013) 34 ILJ 2795 (SCA)
  • Securitas Specialised Services (Pty) Ltd v CCMA and Others (2021) 42 ILJ 1071 (LAC)
  • National Union of Metalworkers of SA and Another v CCMA and Others (2023) 34 SALLR 363 (LC)
November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?