Ivan Israelstam

Parties who are not happy with the decision of a CCMA arbitrator can apply to the Labour Court to review the arbitrator’s conduct. That is, while the arbitrator’s decision itself is not subject to appeal, the Court has the right to set aside awards and rulings of CCMA arbitrators where such decisions were made as a result of the arbitrator’s misconduct.

Section 145(1) of the Labour Relations Act (LRA) states that: Any party to a dispute who alleges a defect in any arbitration proceedings under the auspices of the Commission may apply for an order to the Labour Court for an order setting aside the arbitration award. Section 145(2) of the LRA explains that defect means:

(a) that the commissioner

• (i) committed misconduct in relation to the duties of the commissioner as an arbitrator;
• (ii) committed a gross irregularity in the conduct of the arbitration proceedings; or
• (iii) exceeded the commissioner’s powers; or
• (b) that an award has been improperly obtained.

It is therefore not the arbitrator’s decision that is in question but the way in which it was arrived at. As evidenced by numerous successful reviews at the Labour Court, arbitrator misconduct can and does 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 amongst others.

Employers are warned however, that the legal procedure for setting aside the award of an arbitrator is extremely complicated, beset with bureaucratic vicious circles and riddled with large and hidden dangers. The procedure is as follows:

• The arbitrator, for example, makes an award to the effect that the employer must pay the employee R100 000 in compensation for an unfair dismissal.
• However, even if the employer believes that the employee had not been dismissed at all and left of his own accord, the employer cannot appeal against this decision.
• However, the employer could take the matter further if it has proof that there was a defect in the way the award was made because, for example, the arbitrator ignored key evidence that pointed to the fact that there was no dismissal.
• The employer may therefore decide, instead of adhering to the award and paying the R100 000, to take the arbitrator’s conduct on review to the Labour Court.
• The employer is required, in making this review application, to adhere strictly to the rules of the Labour Court which are many and complex.
• Even if the employer gets the process for the review correct this is only the beginning because the employee does not have to wait for the review case to be heard before claiming his R100 000. That is, the employee has the right to apply immediately for the arbitration award to be confirmed by the Director of the CCMA and to apply for a Writ of Execution.
• Through this writ the employee gets the Labour Court to instruct the Sheriff of the court to take possession of the employer¡¦s property and sell it in order to make R100 000 and to then give the money to the employee. This writ can be obtained by the employee even if the employer¡¦s application for review is still pending!
• That is, it is no longer the case that the existence of a review application automatically stays (delays) a writ of execution. This means that, as soon as the employer gets wind that the employee is applying for a writ of execution, it needs to put in another application to court.
• That is, in order to prevent the writ from being carried out and the employer¡¦s property from being sold in execution, the employer needs to make a special application for the writ to be stayed. This the employer does in the hope that the Sheriff, on seeing proof of the filing of the stay application, will hold back on executing the writ.
• If the Sheriff ignores the stay application then the employer needs to make an urgent application for the writ to be stayed.

In view of the uncertainty of the law, the complexities of the legal procedure and the fact that there is a lot at stake, employers and employees are advised not to enter into this terrain without substantial legal expertise at their fingertips.

• lvan lsraelstam is Chief Executive of Labour Law Management Consulting. He may be contacted on (011)888-7944 or 082 852 2973 or on e-mail address: [email protected]
• Our appreciation to Ivan and The Star newspaper for permission to publish this article…