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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]).
July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?