Article 25/2023

We all know that the constitutional court, in Sidumo and Congress of SA Trade Unions v Rustenburg Platinum Mines Ltd, the CCMA and Moropa NO (2008) 19 SALLR 35 (CC) rejected the reasonable employer test and introduced the reasonable decision-maker test, when dealing with reviews of arbitration awards. Since then, various approaches have been adopted to better understand the reasonable decision-maker test and what is set out hereunder is a summary of such test.

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The labour appeal court, in Goldfields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA (2013) 24 SALLR 41 (LAC), restated that a piecemeal approach to factors to determine unreasonableness should be avoided and the following questions should be asked in applying the reasonable decision- maker test:

  • were the parties given a full opportunity to have their say with regard to the dispute?
  • did the arbitrator correctly identify the dispute required to be arbitrated?
  • did the arbitrator understand the nature of the dispute required to be arbitrated?
  • did the arbitrator deal with the substantive merits of the dispute?
  • is the decision one that another arbitrator could reasonably arrive at based on the evidence?

The labour appeal court, in Head of Department of Education v Mofokeng and Others (2014) 25
SALLR 82 (LAC), referred, with approval, in Palluci Home Depot v Herskowitz (2015) 36 ILJ 1511
(LAC), further stated the following:

  • the failure by an arbitrator to apply his or her mind to material issues normally amounts to an
    irregularity
  • whether such irregularity will result in the setting aside of an award, in addition, must reveal
    misconception of the true enquiry or result in an unreasonable action
  • flaws in reasoning, failure to apply his or her mind, reliance on irrelevant factors, ignoring material factors, etc, are not enough to vitiate an award and must be assessed with reference to the following factors:
    • whether a wrong enquiry was undertaken, or whether the enquiry was undertaken in the
      wrong manner, or whether an unreasonable result was arrived at
    • the short test is to determine whether or not the aforesaid error or irregularity materially
      affected the result and this, in turn, leads to consideration of the following questions:

      • 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?
    • a material error or irregularity points to at least a prima facie unreasonable result and
      various factors are relevant to determine if indeed such unreasonableness exists, namely:

      • the general nature of the decision in issue
      • the range of relevant factors informing the decision
      • the nature of the competing interests impacted by the decision
      • whether a reasonable equilibrium was reached with regard to the objects of the LRA
    • provided the right question was asked and answered, a wrong answer will not necessarily
      be unreasonable – an arbitrator must have diverted from the correct path in conducting the
      arbitration and, as a result, failed to address the issues raised for determinationz
  • the result would be unreasonable if:
    • it is entirely disconnected to the evidence presented
    • it is unsupported by the evidence presented
    • it involves the arbitrator speculating

(referred to in Okhahlamba Local Municipality v Mabuya (2021) 32 SALLR 12 (LC))

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.