BY lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on 0828522973 or on e-mail address: ivan@
Section143(1) of the Labour Relations Act (LRA) provides that “An arbitration award is final and binding”. This is not correct as either party can take the arbitrator’s conduct on review to the Labour Court if they are able to prove that the arbitrator, in making his/her award, has materially broken a rule.
Examples of such arbitrator ‘misconduct’ includes 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.
In County Fair Foods vs Theron NO & others
(2001, 2 BLLR 134 LC) the Court found the aggressive manner in which the arbitrator questioned witnesses to be unacceptable and therefore set the arbitrator’s decision aside.
An arbitrator cannot make a fair decision if he/she fails to take into account all of the material evidence placed before him/her. As occurred in the case of Crown Chickens (Pty) Ltd vs Kapp & others (2002, 6 BLLR 493 LAC).
In the case of Prince vs CCMA and others (2005, 2 BLLR 159) the employee was fired for stealing money collected from the car park pay station. The CCMA upheld the dismissal. The Labour Court, on review found that the CCMA commissioner’s award finding had not been based on the facts. The employer was required to reinstate the employee with 44 months’ back pay plus interest and was also ordered to pay the employee’s legal costs.
During the arbitration hearing of an unreported case (Number JR 1606/04) the commissioner frequently cross examined the employer’s witnesses and made remarks deriding the evidence of those witnesses. The arbitration award, which was in favour of the employee, failed to take into account the evidence brought by the employer. On review the Labour Court found the dismissal to have been both procedurally and substantively fair.
Parties are warned that, even if the aggrieved party has evidence of arbitrator ‘misconduct’ it is difficult to persuade a court judge that this evidence amounts to solid proof meriting the overturning of the award. In the unreported case described immediately above the employer used proper labour law expertise in order to prove its case. Failure to use such expertise would most likely to have resulted in the employer losing the case.
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