Annelise Petzer | Attorney | SchoemanLaw Inc | mail me |
The Commission for Conciliation, Mediation, and Arbitration (CCMA) is a statutory body in South Africa that provides dispute resolution services to parties in various industries.
The CCMA is tasked with resolving disputes between employers and employees through conciliation, mediation, and arbitration. However, there is a possibility that the commissioner could make a mistake during the process, which is why the grounds for reviewing a CCMA award are essential. This article will explore the grounds of review in the CCMA.
Setting a ruling aside
An aggrieved party may apply to the Labour Court in terms of section 145 of the Labour Relations Act (LRA) to have an award or ruling set aside based on an alleged defect with that award.
Section 145 of LRA as amended reads as follows:
- “(1) An arbitration award or ruling, other than an arbitration award or ruling made in terms of section 86(9), (10) or (11) or an arbitration award that has been made an order of the Labour Court in terms of section 158(1)(c), may be reviewed only on the grounds –
- (a) that the commissioner who conducted the arbitration proceedings –
- (i) committed misconduct in relation to his or her duties;
- (ii) committed a gross irregularity in the conduct of the proceedings; or
- (iii) exceeded his or her powers; or
- (b) that an award has been improperly obtained.”
- (a) that the commissioner who conducted the arbitration proceedings –
Misconduct by the commissioner
Misconduct by the commissioner is one of the grounds for review of a CCMA award. This ground of review is available where the commissioner acted improperly or committed misconduct.
Examples of misconduct include bias, lack of independence, and failure to properly consider the evidence presented by the parties.
In the case of Pikitup (SOC) Limited v SAMWU and Others, the Labour Court held that misconduct by the commissioner must be such that it resulted in a grossly irregular or unfair process that prejudiced the party seeking review.
The court also held that the misconduct must be of such a nature that it could not have been remedied by any other means.
Gross irregularity in the proceedings
Gross irregularity in the proceedings is another ground for review of a CCMA award. This ground of review is available where there was a serious irregularity in the proceedings that affected the outcome of the award.
Examples of gross irregularity include procedural irregularities, failure to consider relevant evidence, and failure to apply the law correctly. In general, gross irregularity in the proceedings may refer to serious flaws or irregularities in the conduct of the arbitration that substantially affect the rights of one or more parties.
Examples of gross irregularity in the proceedings may include the denial of a party’s right to be heard, the failure to disclose conflicts of interest by an arbitrator, or the use of corrupt practices to influence the outcome of the arbitration.
Mistake in law or fact
A mistake in law or fact is another ground for review of a CCMA award. This ground of review is available where the commissioner made an error of law or fact that affected the outcome of the award.
Examples of mistakes include misinterpretation of the law, reliance on irrelevant evidence, and failure to properly consider relevant evidence.
In the case of Fidelity Guards Holdings (Pty) Ltd v CCMA and Others, the Labour Court held that a mistake of law by the commissioner is only reviewable if it is a material error that affected the outcome of the award. The court also held that a mistake of fact is only reviewable if it is a clear error that is based on no evidence or on evidence that is contradicted by other evidence.
In conclusion
The review process in the CCMA is limited to the grounds set out in the Labour Relations Act 66 of 1995.
The courts have developed case law that clarifies the standard of review and the grounds for setting aside a CCMA award. It is important for parties to understand these grounds and to ensure that they have a proper understanding of the CCMA dispute resolution process before agreeing to refer their disputes to the CCMA.