Arbitration is not always final

Either party to an arbitration 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 thereby committing ‘misconduct’.

Arbitrator ‘misconduct’ can and does occur in many different forms including, amongst others, 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.

An arbitrator cannot make a fair decision if he/she fails to take into account all of the material evidence placed before him/her. In the case of Crown Chickens (Pty) Ltd vs Kapp & others (2002, 6 BLLR 493 LAC) the arbitrator found that the employee had not called a colleague a “kaffer”. However, the Labour Appeal Court found that the arbitrator had, without good reason, rejected the evidence of two witnesses whose evidence indicated that the employee had called his colleague a “kaffer”. The Court therefore overturned the decision of the arbitrator, found the employee’s dismissal to have been fair and ordered the employee to pay the employer’s legal costs.

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 arbitrator found that the employee had been involved in the theft and upheld the dismissal. The Labour Court found that the employer’s evidence had been sketchy and contradictory and 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. The employer was also ordered to pay the employee’s legal costs.

In an unreported case (Number JR 1606/04) the employee was reprimanded by a manager for failing to phone in while absent from work. The employee left his employment, went to the CCMA and claimed that he had been dismissed. At the CCMA the employer denied that the employee had been dismissed and brought substantial evidence to show that the employee had been instructed to return to work.

During the arbitration hearing 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.

The employer took the arbitrator on review to the Labour Court claiming that the award failed to take the facts into account and that the arbitrator was biased. The Court found in favour of the employer and found the dismissal to be both procedurally and substantively fair.

Parties therefore need not give up if they truly believe that, on the proven facts, they were short changed due to irregular conduct on the arbitrator’s behalf.

However, 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.

By Dr lvan lsraelstam, chief executive of Labour Law Management Consulting.

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