Home

 

Writing an arbitration award: Is it an irregularity if a commissioner outsources the responsibility of writing an arbitration award to a quality controller?

By Fiona Leppan, Director and Bheki Nhlapho, Associate, Employment, Cliffe Dekker Hofmeyr

 

Without a doubt, one would expect that arbitration awards are written and finalised by commissioners. Arbitration awards are edited and formatted by quality controllers who are appointed to ensure that they are competent and enforceable. Once the quality control process is done, arbitration awards are signed off by commissioners and remain the work of commissioners. An interesting question arises when quality controllers interfere with the substantive findings by commissioners.

 

The aforementioned question was dealt with by the Labour Court in Department of Justice & Constitutional Development & others v GPSSBC & others (2018) 39 ILJ 2001 (LC). The facts of this case are that the employee referred a dispute to the bargaining council alleging unilateral change of terms and conditions of employment, failure by the employer to provide a contract of employment and failure to assess and promote him. After unsuccessful conciliation, the matter was set down for arbitration where the parties agreed that the dispute could be determined on the documentation and by a way of written submissions.

 

After the conclusion of the arbitration proceedings, the parties received two arbitration awards from the bargaining council. Both the awards were dated 27 November 2015, but the first one was issued on 12 January 2016 and the second one on 15 January 2016. In terms of the first award, the commissioner ordered that the employer pay the employee a severance package in the amount of R8,449,829.59. The second award ordered the employer to pay the employee compensation in the amount of R1,648,766.70.

 

The explanation from the bargaining council as to which award should prevail was that the first award was not quality controlled. The trail of emails between the quality controller and the commissioner revealed that the quality controller added an entire paragraph dealing with the appropriate remedy in the second arbitration award. Further, the commissioner merely signed off the amended arbitration award without apply her mind to the changes.

 

In dealing with this issue, the Labour Court held that although the quality control process is not limited to editing and formatting, it should not be seen to usurp the statutory powers and duties of the commissioner as the arbitrator of facts and evidence. The final product must remain that of the commissioner and this was not the case in this matter.

 

An interesting finding by the Labour Court was that since the commissioner had signed off the amended arbitration award without apply her mind, this had the effect of rendering the arbitration award capable on the grounds of irregularity. The Labour Court emphasised that the role of quality controllers is not to rewrite arbitration awards where errors are detected.

 

In such a case, the quality controller must inform the commissioner who will decide whether he or she wishes to rewrite the award or portions thereof.

 

The principles in this case are lessons to commissioners and not so much applicable to practitioners. However, those who are fortune enough to obtain the exchange of emails in the quality control process may be able to discover additional grounds of review.

 

For more information please contact Fiona Leppan at or Bheki Nhlapho at    

Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com

 

 

 

 

Case Law Summaries and Articles

 

Can employees be dismissed for refusing to accept new terms and conditions of employment?

Can an employer dismiss employees because they refuse to agree to a change to their terms and conditions of employment? An initial answer may be, “yes”.

Read More >>>

 

Escape route: “Resignation with immediate effect”

The latest case in the ‘disciplining employees who have resigned with immediate effect’ saga has brought about more uncertainty as to whether an employee who resigns with immediate effect shortly before a disciplinary hearing can avoid disciplinary action and subsequent dismissal.

Read More >>>

 

Freedom of expression or incitement to commit an offence? A constitutional challenge

On 4 July 2019, the North Gauteng High Court handed down judgment in the case of The EFF and other v Minister of Justice and Constitutional Development and other (87638/2017 and 45666/2017) in which the EFF and Julius Malema (the applicants) sought to have s18(2)(b) of the Riotous Assemblies Act, No 17 of 1956 (Riotous Act) declared unconstitutional.

Read More >>>

 

Consolidated, comprehensive or general final written warnings

Regarding dismissal, according to the Code of Good Practice, “the courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them.

Read More >>>

 

 

 

 

 

 

Courses and Workshops

 

                   

 

The OHS Act and the Responsibilities of Management

22 November 2019

Emperors Palace: Convention Centre

29 November 2019

Tsogo Sun: Century City: Stay Easy: Cape Town

Employment Equity Committee Training

22 November 2019

Protea Hotel Fire & Ice: Menlyn

Hazard Identification & Risk Assessment Course

27 November 2019

Tsogo Sun: Century City: Stay Easy: Cape Town

Workshop Incident/Accident Investigation Course

28 November 2019

Tsogo Sun: Century City: Stay Easy: Cape Town

AARTO and the Impact on Your Business

28 November 2019

Emperors Palace: Convention Centre

    

 Our Clients 

 

Android App On Google Play

Android App On Google Play