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Ivan Israelstam



Section 143(1) of the LRA says "an arbitration award is final and binding". This misleads employers and employees into believing that they cannot apply for an arbitrator's decision to be overturned.


In fact, either party can take the arbitrator's conduct on review to the Labour Court if they can prove that the arbitrator, in making his/her award, has materially broken a rule, thereby committing misconduct. This is different to an appeal which is made, not against the arbitrator's conduct, but against his/her decision.


Arbitrator misconduct can occur in many different forms including: bias, interrogation of witnesses, failure to keep records, ignoring of evidence, refusal to allow a party the right to question witnesses or bring evidence, failure to apply his/her mind, misconstruing of evidence, overstepping his/her authority and failure to consider statutory provisions.


In the case of Best Boland Motors v Dispute Resolution Centre and others, the Labour Appeal Court found that the conduct of the arbitrator suggested bias. The arbitrator and the applicant, an employee, left the proceedings for 10 to 15 minutes both before and after the arbitration hearing and entered into discussions between themselves. The court found that the arbitrator's conduct led the respondent to a reasonable apprehension of bias.


Bias can show itself in other forms too. For example, the arbitrator might assist one party and not the other, aggressively interrogate witnesses rather than ask questions for clarity or ignore material evidence. In County Fair Foods v Theron NO & others the court found the aggressive manner in which the arbitrator questioned witnesses to be unacceptable and therefore set the arbitrator's decision aside.


An arbitrator cannot make a fair decision if he/she fails to take into account all the material evidence placed before him/her. In the case of Crown Chickens v Kapp & others the arbitrator found that the employee had not racially slurred a colleague.


However, the Labour Appeal Court found that the arbitrator had, without good reason, rejected the evidence of two witnesses whose evidence indicated that the employee did call the colleague by an offensive name.


The court found this and the commissioner's failure to construe the probabilities of the case correctly amounted to a gross irregularity. It overturned the decision of the arbitrator, found the dismissal fair and ordered the employee to pay the employer's legal costs. In Prince vs CCMA and others the employee was fired for allegedly stealing money collected from the car park pay station.


The CCMA arbitrator found that the employee had been involved in the theft and upheld the dismissal. The employee then applied to the Labour Court for a review. The court found the evidence was inadequate. There had been three or four people who had access to the keys to the safe, anyone of whom could have taken the money.


The court found that the employer's evidence had been sketchy and contradictory and that the CCMA commissioner's award finding had not been based on the facts. The employer was required to reinstate the employee with 44 months' back pay and pay his legal costs.


However, even if the aggrieved party has evidence of arbitrator "misconduct", it is difficult to persuade a court judge that this amounts to solid proof meriting the overturning of an award.
Using proper labour law expertise in order to prove the case is recommended.

 
 

  • Ivan Israelstam is chief executive of Labour Law Management Consulting. Contact him on 011-888-7944 or via email: .
  • Our thanks to Ivan and the Star Newspaper for granting permission  to publish this article

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