THE ROLE OF REASONABLENESS IN THE REVIEW OF LABOUR ARBITRATON AWARDS (PART 2)

Abstract

This article is published in two parts. In the first part (published in the previous edition of Obiter) the general principles relating to administration review were established and the different forms of review considered. It was also established that the making of a CCMA arbitration award constitutes administrative action that is subject to the constitutional right to administrative justice; that justifiability is a constitutional requirement for just administrative action and that a failure to make a decision that is justifiable in terms of the reasons given may render an award reviewable in terms of section 145 of the LRA. This second part of the article will build on the conclusions of the first by focusing on setting out the key findings made by the CC in Sidumo v Rustenburg Platinum Mines Ltd (2007 12 BLLR 1097 (CC)) as regards the test for reviewing arbitration awards in terms of section 145 of the LRA. The purpose is to establish how reasonableness might best be understood and defined as well as to determine its implications for subsequent review proceedings. Case law that has sought to interpret and apply the principles established in Sidumo, will likewise be discussed in order to contextualise the place of reasonableness in the review of arbitration awards with a view better to understand its implications for the courts’ review function. Particular attention will be given to determining the applicability of the reasonableness standard to jurisdictional reviews. The principles laid down by the labour appeal court in Fidelity Cash Management Service v CCMA (2008 3 BLLR 197 (LAC)) will also be discussed with the objective of determining whether the court’s approach that an award is not reviewable because of flawed reasoning determining that the outcome is sustainable according to reasons identified in the record, and whether this finding is consistent with CC’s findings in Sidumo. It will also be considered whether the reasonableness standard as introduced by Sidumo will have any influence on the review of private arbitration awards in terms of section 33 of the Arbitration Act 42 of 19652 and whether parties can agree that an award would be reviewable on the same grounds and subject to the same test as a CCMA award. Finally, proposals will be made in respect of the interpretation and application of the reasonableness principle for the purpose of assisting in review proceedings to come.