Article 22/2021

Labour Edge

In taking an arbitration on review, is an applicant entitled to adopt the approach that the grounds of review extend to both an incorrect interpretation of law by the arbitrator as well as the unreasonableness of the arbitrator’s finding?


In Intercape Ferreira Mainliner (Pty) Ltd v McWade and Others (2019) 30 SALLR 148 (LC), the following was stated in this regard: There is nothing inconsistent with this approach.  Indeed, it is not often, if ever, that an incorrect decision, or a decision made on the basis of a material error of law, will meet the reasonableness threshold (see Coega Development Corporation (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others [2016] 2 BLLR 151 (LC)).  The correctness challenge is specifically founded on the decision by the labour appeal court, in National Union of Metalworkers of SA v Assign Services and Others (2017) 38 ILJ 1978 (LAC); [2017] 10 BLLR 1008 (LAC); (2017) 28 SALLR 15 (LAC), where the court said:

‘[32]   An incorrect interpretation of the law by a commissioner is, logically, a material error of law which will result in both an incorrect and unreasonable award. Such an award can either be attacked on the basis of its correctness or for being unreasonable.’

 

Is it always required to lead evidence about the destruction of the trust relationship in order to avoid a reinstatement order?

On what basis did the labour court recently hold, in De Kock v CCMA and Others (2019) 30 SALLR 177 (LC), that insubordination destroys the relationship of trust, mutual confidence and respect, and generally makes the continued employment relationship intolerable?

To what extent is a commissioner permitted to rely on the employer’s decision in determining whether or not a dismissal is fair?