Article 75/2021

Labour Edge

In applying the reasonable decision-maker test when reviewing an arbitration award, what weight should be given to the different factors independently and individually?

  1. In Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others (2014) 35 ILJ 943 (LAC); [2014] 1 BLLR 20 (LAC), the labour appeal court rejected a piecemeal or fragmented approach to reviews, where each factor that the commissioner failed to consider was analysed individually and independently, for principally two reasons. The first was that it ‘assumes the form of an appeal’ and not a review, and the second was that it was mandatory for the reviewing court to consider the totality of the evidence and then decide whether the decision made by the arbitrator was one that a reasonable decision-maker could make. To evaluate every factor individually and independently, it observed, was to defeat the requirements in s138 of the Labour Relations Act 66 of 1995, as amended (‘the LRA’) in terms of which the arbitrator is required to deal with the substantial merits of the dispute between the parties with the minimum of legal formalities, albeit expeditiously and fairly.
  2. On this approach, therefore, the failure of a commissioner ‘to mention a material fact in his or her award’, or ‘to deal in his/her award in some way with an issue which has some material bearing on the issue in dispute’, or ‘commits an error in respect of the evaluation or consideration of facts presented at the arbitration’ would not, in itself, render the award reviewable.
  3. In Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 964 (LAC); [2008] 3 BLLR 197 (LAC), at paragraphs [98]–[100], Zondo JP applied the Sidumo test thus:

‘It will often happen that, in assessing the reasonableness or otherwise of an arbitration award or other decision of a CCMA commissioner, the court feels that it would have arrived at a different decision or finding to that reached by the commissioner. When that happens, the court will need to remind itself that the task of determining the fairness or otherwise of such a dismissal is in terms of the Act primarily given to the commissioner and that the system would never work if the court would interfere with every decision or arbitration award of the CCMA simply because it, that is the court, would have dealt with the matter differently.

The test enunciated by the Constitutional Court in Sidumo for determining whether a decision or arbitration award of a CCMA commissioner is reasonable is a stringent test that will ensure that such awards are not lightly interfered with. It will ensure that, more than before, and in line with the objectives of the Act and particularly the primary objective of the effective resolution of disputes, awards of the CCMA will be final and binding as long as it cannot be said that such a decision or award is one that a reasonable decision-maker could not have made in the circumstances of the case. It will not be often that an arbitration award is found to be one which a reasonable decision-maker could not have made but I also do not think that it will be rare that an arbitration award of the CCMA is found to be one that a reasonable decision-maker could not, in all the circumstances, have reached.’

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.