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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article on the 'Inherent requirements of the job', viewed from the perspective of being fair to job applicants. We also look at three new cases: The first looks at when a CCMA (or bargaining council) arbitrator can fairly refuse an application for legal representation. The second looks at the refusal of the Labour Court to allow an old case to be retrieved from the archives of dormant files for the purpose of a review, showing a tough approach towards parties who fail to pursue reviews within 6 months. The third case looks at whether an arbitrator's award will stand if it contains errors.
This public newsletter is a free edited version of the subscriber newsletter.
Refusing legal representation at the CCMA
An employee was dismissed on four charges of sexual harassment. He referred an unfair dismissal dispute to the CCMA for conciliation and arbitration. After receiving notice of set down of the arbitration hearing for 29 June 2010, the employee made application to the CCMA on 24 June to be permitted legal representation at the arbitration proceedings. On 29 June, the employee attended the hearing with his legal representative. The employer opposed the application for legal representation but did not file opposing papers. In dismissing the application for legal representation, the Commisssioner stated that "if legal representation is denied, the applicant will not suffer any prejudice because the union will step in. If legal representation is allowed, the playing field will not be level and that will prejudice the respondent".
Having disallowed legal representation, the Commissioner advised the applicant to call the union to represent him at the arbitration proceedings. An official of the union informed the Commissioner that the employee intended to take the ruling on review. He also requested a postponement of the arbitration proceedings on the basis that he was unable to represent the employee as he was not informed about the matter, and that the union official who was familiar with the matter, was not available to represent at the hearing due to ill-health. The Commissioner dismissed the application for a postponement on the basis that the employee ought to have prepared for the eventuality of the application being refused, and should have made arrangements for his union representative to be available for the hearing. The union official then excused himself and left the hearing, and so too did the employee. The Commissioner then dismissed the case.
The employee took the matter on review to the Labour Court. The Labour Court reviewed and set aside the postponement and dismissal rulings of the Commissioner, and remitted the matter to the CCMA for hearing de novo before another commissioner on the grounds that the refusal by the Commissioner to grant a postponement amounted to a gross irregularity. The Labour Court, however, found that "the decision of the Commissioner on legal representation stands and cannot be entertained by the new commissioner".
The Labour Court confirmed the decision of the Commissioner not to allow legal representation at the arbitration proceedings on the basis that the Commissioner had applied his mind to the relevant factors on whether legal representation should have been granted, and correctly came to the conclusion that it should not as the union, which had represented the employee at both the disciplinary hearing and the conciliation proceedings, would step in if legal representation was denied. The Labour Court found that the Commissioner had looked at the comparative ability of the representatives and correctly found that "if legal representation is allowed the playing field will not be level and that would prejudice the third respondent".
The employee appealed the decision of the Labour Court to the LAC, on the grounds that the Labour Court erred in confirming the Commissioner's application of Rule 25(1)(c) of the CCMA Rules, which they contended was unconstitutional as it denied a party in a CCMA arbitration the right to be represented by a qualified and competent legal representative to protect his or her constitutional right to fair labour practices. In addition, the employee contended that the Commissioner committed a gross irregularity by failing to consider all the factors relevant to the determination of an application to be allowed legal representation at CCMA proceedings.
The LAC in National Union of Mineworkers and Another v Commission for Conciliation Mediation And Arbitration and Others (JA90/2013)  ZALAC 51 (1 October 2014) upheld the decision of the LC and dismissed the appeal. The court held that in dealing with the discretionary decision to allow legal representation the court must consider whether the arbitrator properly took into account all factors in coming to its decision, and whether the decision arrived at is justified. Where it is clear that the Commissioner was alive to the factors listed in CCMA Rule 25(1)(c), no other inference but that the Commissioner did in fact consider the other factors listed in Rule 25(1)(c) can be drawn from this. What this means is that an arbitrator does not have to go through each and every one of the factors in the reasons given in an award - a failure to do so does not mean s/he failed to apply her/his mind to each of the factors.
You snooze, you lose
Almost ten years after filing a review to set aside an arbitration award, an application was made in Hlabiwa v CCMA and Others (JR213/05)  ZALCJHB 383 (2 October 2014) to retrieve the file from the archive of dormant files. This archive was established in terms of a Practice Manual of the Judge President of the Labour Court in order to stop tactical reviews which have as their sole purpose the frustrating of an arbitral award. The Labour Court confirmed that the purpose of the LRA is to promote expeditious dispute resolution, and where a person who files an application to review an arbitration award takes no steps to proceed with the review, the Labour Court may refuse to allow the file to be retrieved from the archive of dormant files.
The court recognised that some of the blame was to be borne by the applicant's previous attorney. But the judge said that there is a point at which an individual applicant must assume personal responsibility for the conduct of a matter. That point was reached long before the applicant's current attorney came on record. Using the prejudice test, the court said that "the prejudice to the respondents should the file be retrieved and the matter proceed after almost a decade of dormancy would be immense".
Although this case is about a technical and procedural matter, we have discussed it in this newsletter for the benefit of Worklaw subscribers, because it is the first reported case of a refusal to allow the retrieval of a dormant file. It stands as a warning to parties that they need to pursue the review within six months, failing which the file may be irretrievably archived.
Errors in the arbitration award reviewable?
In the recent Labour Court decision Engineering Council of SA v Ramushowana NO and Others (JR186/12)  ZALCJHB 389 (13 October 2014) the court reviewed a CCMA award which found that the dismissal of an employee was procedurally fair but substantively unfair. The award obviously perplexed the employer because the evidence was so straightforward and conclusive. An employee had been charged with misconduct. Two of the charges were serious: fraudulently amending staff financial assistance agreements to the detriment of the council and to advance the employee's personal interests and, second, using his position to request and obtain a laptop for his personal use from a regular supplier, thereby acting in a corrupt manner.
A disciplinary hearing found the applicant guilty on three of the four charges brought against him, including the two charges referred to above. The Chair recommended that the employee be dismissed. The CCMA award found this to be substantively unfair.
The Sidumo test for review of a CCMA award is now well known: is the award one which a reasonable commissioner could not make? This means that there is a zone of reasonable decisions and as long as the commissioner's decision falls in that zone, the Labour Court may not set it aside. The emphasis is on the reasonable award, not necessarily on how it was reached. Subsequent decisions have held that mere errors of fact or law may not be enough to vitiate the award. Something more is required.
If arbitration awards are given this wide leeway, at what point do they become unreasonable? The errors made by an arbitrator have to amount to a misconceived inquiry or a decision which no reasonable decision-maker could reach on all the material that was before him or her. Flaws in the reasoning of the arbitrator, evidenced in the failure to apply the mind, reliance on irrelevant considerations or the ignoring of material factors etc. must be assessed with the purpose of establishing whether the arbitrator has undertaken the wrong enquiry, undertaken the enquiry in the wrong manner or arrived at an unreasonable result.
What this means that some irregularities or errors in relation to the facts or issues may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the inquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrator's conception of the inquiry, the delimitation of the issues to be determined and the ultimate outcome.
The 'if but' question is helpful: If but for an error or irregularity a different outcome would have resulted, it will be material to the determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result. The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA. Provided the right question was asked and answered by the arbitrator, a wrong answer will not necessarily be unreasonable. By the same token, an irregularity or error material to the determination of the dispute may constitute a misconception of the nature of the enquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone. The arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination.
The Labour Court in the Engineering Council case adopted this approach and pointed out a series of errors the arbitrator had made, reaching conclusions on pivotal issues which produced a fundamentally unreasonable decision. The court set aside the arbitrator's award and, because there was no point in remitting the matter to be heard afresh by a different arbitrator, held that the dismissal was both procedurally and substantively fair.
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