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Article 29/2021

Labour Edge

What is the content of the two-stage enquiry to be adopted when considering a review application of an arbitration award?

  1. In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC); (2007) 28 ILJ 2405 (CC); [2007] 12 BLLR 1097 (CC); (2008) 19 SALLR 35 (CC), the constitutional court held that ‘the reasonableness standard should now suffuse s145 of the LRA’, and that the threshold test for the reasonableness of an award was:

‘…Is the decision reached by the commissioner one that a reasonable decision-maker could not reach?…’ (see also CUSA v Tao Ying Metal Industries and Others (2008) 29 ILJ 2461 (CC), at paragraph [134]; Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 964 (LAC); [2008] 3 BLLR 197 (LAC), at paragraph [96]).

  1. In Herholdt v Nedbank Ltd and Another 2013 (6) SA 224 (SCA); 2013 (34) ILJ 2795 (SCA); 2013 (11) BLLR 1074 (SCA), at paragraph [25], the supreme court of appeal applied this reasonableness consideration as follows:

‘…A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to the particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of consequence if their effect is to render the outcome unreasonable’ (see also Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and Others (2014) 35 ILJ 943 (LAC); [2014] 1 BLLR 20 (LAC), at paragraph [14]; Monare v SA Tourism and Others (2016) 37 ILJ 394 (LAC), at paragraph [59]; Quest Flexible Staffing Solutions (Pty) Ltd (A Division of Adcorp Fulfilment Services (Pty) Ltd) v Legobate (2015) 36 ILJ 968 (LAC), at paragraphs [15]–[17]; National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others (2015) 36 ILJ 2038 (LAC), at paragraph [16]).

  1. This meant a two-stage review enquiry. Firstly, the review applicant had to establish that there existed a failure or error on the part of the arbitrator. If this could not be shown to exist, that would be the end of the matter. Secondly, if this failure or error was shown to exist, the review applicant had then to further show that the outcome arrived at by the arbitrator had been unreasonable. If the outcome arrived at was, nonetheless, reasonable, despite the error or failure, that would equally be the end of the review application. In short, in order for the review to succeed, the error or failure had to affect the reasonableness of the outcome to the extent of rendering it unreasonable.
  2. Further, the reasonableness consideration envisaged a determination, based on all the evidence and issues before the arbitrator, as to whether the outcome the arbitrator arrived at could, nonetheless, be sustained as a reasonable outcome, even if it might be for different reasons or on different grounds. This necessitated a consideration by the review court of the entire record of the proceedings before the arbitrator, as well as the issues raised by the parties before the arbitrator, with the view to establishing whether this material could, or could not, sustain the outcome arrived at by the arbitrator.
  3. In the end, it would only be if the outcome arrived at by the arbitrator could not be sustained on any grounds, based on that material, and the irregularity, failure or error concerned was the only basis to sustain the outcome the arbitrator arrived at, that the review application would succeed (see Campbell Scientific Africa (Pty) Ltd v Simmers and Others (2016) 37 ILJ 116 (LAC), at paragraph [32]; Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others (2015) 36 ILJ 1453 (LAC), at paragraph [12]).
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We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

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What is the content of traditional consensus to indicate that an agreement exists between an employer and an employee?

If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

What does the three-fold enquiry entail to determine the presence of quasi-mutual assent?

In determining whether an agreement has been reached in the absence of traditional consensus, but on the basis of quasi-mutual assent, what is the extent of the duty on the party wishing to rely on such an agreement to, on the basis of reasonableness, enquire as to the contradictions that exist in the position of the other party so contained in correspondence?

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Where do delictual claims fit into dispute resolution options applicable to employment disputes?