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Article 37/2026

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

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  • 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); 2008 (2) SA 24 (CC) (Sidumo), in essence, determined that, when reviewing an arbitration award, the reasonable employer test is not applicable, but what is applicable is the reasonable decision-maker test.
  • In short, in applying such test, when the labour court reviews the CCMA/ bargaining council arbitration award, it reviews the functions of such arbitrator, based upon whether or not such administrative functions of the arbitrator and the proper exercise of powers complied with the requirements of a reasonable decision maker.
  • When the CCMA arbitrator hears a matter, it is his/her view of fairness that prevails, and not the view of fairness of the employer – obviously, it is well-established that such view of fairness of the commissioner is established during an enquiry de novo.

Short reasonable decision-maker test

  • A reviewing court must ascertain:
    • whether the arbitrator considered the principal issue before him/her
    • evaluated the facts presented at the arbitration
    • came to a conclusion that is reasonable

See, further, Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA (2013) 24 SALLR 41 (LAC) (Gold Fields Mining).

Questions to be asked in determining whether the arbitrator has complied with the reasonable decision-maker test

  • The labour appeal court, in Gold Fields Mining, identified the following relevant questions:
    • were the parties given the 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 a reasonable arbitrator could reasonably arrive at based on the evidence?

A recent example of how the reasonable decision-maker test is applied by the labour court

  • In Worldwide Staffing (Pty) Ltd v Metal and Engineering Industries Bargaining Council (2024) 35 SALLR 458 (LC), the labour court stated the following: to be set aside on review, both the reasons and the result of the award must be unreasonable
  • The following approach is to be adopted to determine whether the result is unreasonable:
    • broadly evaluate the merits of the dispute
    • if the reasoning is found to be unreasonable, can the result nevertheless be justified on reasons other than the reasons provided by the arbitrator?
    • the result will be unreasonable if it is disconnected with the evidence, unsupported by any evidence, contrary to relevant evidence and involves speculation by the arbitrator
  • An award will be reasonable if there is a material connection between the evidence and the result – i e the results is reasonably supported by the evidence.

See, further, National Union of Metalworkers of SA v CCMA and Others (2023) 34 SALLR 363 (LC).

October 19, 2026

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

October 5, 2026

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?

September 28, 2026

What are the principles governing common purpose misconduct?