THE ROLE OF REASONABLENESS IN THE REVIEW OF LABOUR ARBITRATON AWARDS (PART 1)

This article is published in two parts. In the first part (published in this edition of Obiter) the authors establish the general principles relating to administrative review and consider the different forms of review. Thereafter CCMA arbitration award reviews are considered. As is characteristic of special statutory reviews the Labour Relations Act, 1995 (“the LRA”) makes specific provision for the review of CCMA arbitration awards. The grounds of review are presented in such a manner that it has the effect of limiting the ambit. The administrative nature of CCMA arbitrations is considered. It is pointed out that the courts regard the CCMA as organ of state andthat the rendering of an arbitration award is considered as the commission of an administrative act that is subject to the constitutional imperatives of the administrative justice right of the Constitution. The authors also establish that the courts have not interpreted the restrictive scope of section 145 of the LRA as falling foul of the constitutional right to administrative justice. Rather, the courts have reasoned that, when reading section 145 in light of the constitutional right to administrative justice, the alleged misconduct, grossirregularity, exceeding of powers or impropriety as the case may be need only be measured against the constitutional imperatives of the administrative justice right in order to ensure constitutional consistency. So construed, an arbitration award would be reviewable if the reviewing court is able to conclude that the commissioner has committed misconduct or a gross irregularity or has exceeded his powers in terms of section 145(2) of the LRA because the decision is not justifiable in terms of the reasons given. The award would, however, not be reviewable only because it is perceived to be unjustifiable per se; the justifiability must be attributed to one or moreof the statutory grounds of review found in section 145(2) of the LRA. In Part 2 of the article the effect of the judgment of the Constitutional Court in Sidumo v Rustenburg Platinum Mines Ltd 2007 12 BLLR 1097 (CC) will be analysed as well as the application of the principles established in Sidumo in subsequent case law. Finally the reasonableness standard and private arbitration reviews will be considered. Part 2 will be published in the following edition of Obiter.