So you’ve lost at the CCMA – what can you do about an unsatisfactory arbitration award ?

It very often happens that parties are dissatisfied with the award issued by a commissioner at the CCMA or a Bargaining Council, and the question is how one can challenge that award so that it is overturned.

The answer lies in instituting a review application in the Labour Court.

A review is not an appeal – there is a fundamental difference between the two.

An appeal concerns itself with whether there is a reasonable prospect that another Court would reach a different conclusion.

A review concerns itself with whether the decision-maker could reasonably have reached the decision that was reached.

An arbitration award can only be the subject of a review, not an appeal.

The grounds for review are extremely limited, and thus a successful review is not easily achieved.

In addition, there are also very strict timelines in not only initiating the review application but also in regard to the other compulsory steps that must be taken in bringing the matter to court, and failing to do so will not only be met with little sympathy from the Labour Court, but may even result in the review application not being heard, despite the fact that the grounds for review are excellent.

In terms of the Labour Relations Act, any party to a dispute who alleges a defect in arbitration proceedings may apply to the Labour Court for an order reviewing and setting aside the award.

A defect means the commissioner: committed a misconduct in relation to the duties of the commissioner as an arbitrator; committed a gross irregularity in the conduct of the arbitration proceedings; exceeded the commissioner’s powers; or that an award has been improperly obtained.

However, merely identifying a defect, or even a multitude of defects, will not in itself mean that the award will be reviewed and set aside – the test on review is far more challenging and difficult than that.

The Labour Court will require the party seeking to review the award to show that the decision that the commissioner arrived at was one that a reasonable decision-maker could not have reached based on all the available material.

Merely disagreeing with the way the commissioner viewed the matter, or listing every issue that was raised at the arbitration but that the commissioner failed to consider either properly or at all, even if such issues are material, is not going to get one over the line – it will need to be shown that ultimately the commissioner could not reasonably have reached the decision that was reached.

Just in case you thought you now have a handle on how to succeed with a review application, the review application may not concern itself at all with whether the award was one that could not have been made by a reasonable decision-maker. It may for example concern itself with whether the arbitrator had jurisdiction to even hear the matter in the first place.

The court on review in such an instance is required to determine whether the commissioner had jurisdiction or not – that is a question of fact – ie. was the decision to assume jurisdiction right or wrong. This has nothing at all to do with the reasonableness of the decision-maker’s decision.

Eish – these review applications are hectic stuff !!!!

Awards can be, and are regularly overturned on review by the Labour Court, but you only get one chance to do it – make sure that you obtain expert advice in regard to that one chance or you may have to live with that unsatisfactory arbitration award forever.