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Ivan Israelstam
Where a party at the Council for Conciliation, Mediation and Arbitration (CCMA) or bargaining council is unhappy with the award or ruling of an arbitrator, he/she does not have the right of appeal. However, an aggrieved party can take the arbitrator's "conduct" on review. That is, either party has the right to take the arbitrator to the labour court, if he/she believes or feels that the arbitrator has acted incorrectly in respect of the case in question.
The labour court has the right to set aside awards and rulings of arbitrators where these were made as a result of the arbitrator's "misconduct". It is therefore not the arbitrator's decision that is taken on review, but the way in which it was arrived at. Examples of such arbitrator misconduct include, among others, bias, interrogation of witnesses, improper analysis of evidence, ignoring of evidence, refusal to allow a party the right to question witnesses or bring evidence, failure to apply his/her mind, misconstruion of evidence, overstepping his/ her authority and failure to consider statutory provisions.
Here are some examples from case law illustrating examples of "misconduct" where the labour court has set aside or changed the findings of arbitrators or CCMA commissioners: Bias - In the case of Mutual and Federal Insurance Company Ltd v CCMA & others (1997,12 BLLR 1610 LC), the court held that proof of actual bias of an arbitrator or commissioner was not necessary. The applicant for the review only needed to prove that the arbitrator's conduct indeed gave rise to a reasonable suspicion or perception of bias.
In Leboho v CCMA and others (2005, 8 BLLR 802), the Labour Court set aside a CCMA award because the arbitrator called a witness instead of leaving it to the parties to do. As this witness was potentially able to advance the employer's case, the arbitrator's conduct gave the impression of bias towards the employer. Aggressive interrogation - Bias can show itself in other ways, too.
For example, the arbitrator might aggressively interrogate the witnesses of one of the parties or otherwise interfere with the witness process. This would indicate bias, particularly of the witnesses of the other party to the dispute were not treated in the same manner. In Nusog v Minister of Health and Social Services (2005, 4 BLLR 373), the labour court found that the arbitrator had aggressively interrogated the applicant employee and that this indicated bias and was, therefore, grounds for successful review.
Improper analysis of evidence - In SABC v CCMA and Others (2006, 6 BLLR 587), the CCMA had found that the employee had been unfairly dismissed because he was fired for misconduct. The allegations made, however, related to poor performance on the part of the employee, which is different from misconduct. The labour court set aside this award because the CCMA was wrong in its categorisation of the offence and because assessing what the employee had done was more important than placing the behaviour in a category.
Ignoring of evidence - An arbitrator cannot make a fair decision if he/she fails to take into account all of the material evidence placed before him/her. In the case of Sasko (Pty) Ltd v Buthelezi and others (1997, 12 BLLR 1639 LC) the arbitrator failed to take into account that the applicant employee had refused a promotion to a post in another town. Therefore, in arriving at the decision that the employer had unfairly failed to promote the employee, the arbitrator had not taken into account material evidence.
The labour court found this to be a breach of the arbitrator's duty and set the decision aside. Misconstruing evidence - In the case of American Leisure Corporation, Durbanville v Van Wyk and others (2005, 11 BLLR 1043), the labour court found that the CCMA had misconstrued the evidence and had therefore decided incorrectly that the employee had been dismissed.
Failure to consider statutory provisions - In Mlaba v Masonite (Africa) Ltd and others (1998, 3 BLLR 291 LC), the arbitrator's award was set aside because he had failed to consider the provisions of the Basic Conditions of Employment Act in arriving at his award. Parties are warned that, even if they believe that they have evidence of arbitrator misconduct, it is still difficult to persuade a court judge that this evidence amounts to solid proof meriting the overturning of the award.
Also, very often, the loser in labour court pays the legal costs of the winner. Therefore, parties should not lightly take the decision to apply to court for a review on their own, without the benefit of proper legal expertise.
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Ivan Israelstam is chief executive of Labour Law Management Consulting. Contact him on 011-888-7944 or via email:
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Our thanks to Ivan and The Star newspaper for permission to publish this article.
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