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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]).
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)?