Public Newsletter
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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This month's newsletter looks in depth at the issue of taking arbitration awards on review - when it is allowed and appropriate. We also look at two new decisions, one touching on the theme of our article, when should a judge review an arbitration award and the second, on the vexed issue of the employer's vicarious liability for the wrongs committed by its employees.
This public newsletter is a free edited version of the subscriber newsletter.
LATEST CASE REPORTS
Grounds for review
When the arbitration award goes against us we are very unhappy, especially when we thought our case was watertight. If we rush off to the Labour Court to have the decision reviewed, will the judge set the award aside if we can persuade her/him to replace the arbitrator's conclusions with that of the judge's? In Universal Product Network (Pty) Ltd v CCMA & others (2004) 25 ILJ 1496 (LC; [2004] 11 BLLR 1167 (LC) the principles of when a judge will set aside an award are again spelt out. An arbitrator's award will not be reviewed by a judge merely because the review judge would have come to a different conclusion had a judge been sitting as an arbitrator. The judge, if satisfied that the arbitrator considered all the facts, and applied relevant legal principles, must not review and set aside an award merely because the judge is of the opinion that the arbitrator's conclusions are incorrect or different to those he/she would have reached. This case is a good illustration that the award will be set aside only when the judge is satisfied that the arbitrator conducted herself irregularly because her conclusions could not be justified in the light of the evidence placed before her. Our article in this month's newsletter sets out the full grounds for review.
Vicarious liability
There is a basic principle in employment law that the employer is liable for the wrongs committed by its employees in the course and scope of their responsibilities. This is called vicarious liability. In MEC for Department of Public Works (Eastern Cape) v Faltein (2005) 26 ILJ 49 (SCA) the Supreme Court of Appeal had to decide if the employer was liable for damages suffered in a bus belonging to the employer as a result of the negligent driving by an employee. The employer (the Department of Public Works) had made its buses available to its workers to transport fellow workers and family to attend funerals of deceased colleagues. The employer said this was a private contract of loan, a gesture of goodwill. The drivers were not paid for driving on these occasions, but they had to adhere to departmental rules about the way they drove. A person other than the authorised driver drove the passengers home when the accident occurred. The court held that when the unauthorised driver - also an employee - took over the driving, he was doing exactly what the authorised driver was instructed to do, and it followed that he was acting within the course and scope of his employment. The employer was therefore liable.
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Bruce Robertson
May 2005
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