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REVIEW vs APPEAL: How does the labour court tell the difference between a review and an appeal?

Labour Law in a Nutshell: October 2020

The test on the review is well-established. The applicant must establish a reviewable irregularity by the arbitrator which rendered the award unreasonable. In other words – it was a decision which no reasonable decision-maker could have come to on the available evidence.

An appeal on the other hand is a challenge to the findings on the merits of fact or law. The court in an appeal considers whether the decision-maker was mistaken in its assessment of what facts were relevant or in concluding that the facts exist.

The labour court has found in several judgments that –

“… Picking away at threads of an arbitrator’s reasoning in a piecemeal fragmented fashion is not the correct way to approach a review.”

In particular the court had the following to say –

“In a review conducted under section 145 [2] [a] [ii] of the LRA, the reviewing court is not required to take into account every factor individually, consider how the arbitrator treated and dealt with each of those factors and then determine whether a failure by the arbitrator to deal with one or some of the factors amounts to process related irregularity sufficient to set aside the award.

This piecemeal of dealing with the arbitrator’s award is improper as the reviewing court must necessarily consider the totality of the evidence and then decide whether the decision made by the arbitrator is one that a reasonable decision-maker could make.”

In September 2020, Judge van Niekerk said the correct questions which a court should ask in a review are as follows –

“(1)        In terms of his or her duty to deal with the matter with the minimum of legal formalities, did the process that the arbitrator employed give the parties a full opportunity to have their say in respect of the dispute?

(2)          Did the arbitrator identify the dispute he or she was required to arbitrate?

(3)          Did the arbitrator understand the nature of the dispute he or she was required to arbitrate?

(4)          Did he or she deal with the substantial merits of the dispute?

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[1] Goldfields Mining SA (Pty) Limited [Kloof Goldmine] v CCMA and others [2014] 35 I LJ 343 [LAC].

[2] National Union of Mineworkers v Elematic SA (Pty) Limited and Others (JR 2610. 2016) 16 September 2020

 

(5)          Is the arbitrator’s decision one that another decision-maker could reasonably have arrived at based on the evidence?

And –

“The review must be considered on the totality of the evidence not on a fragmented piecemeal basis. As soon as it is done on a piecemeal fashion, the evaluation of the decision arrived at by the arbitrator assumes the form of an appeal. A fragmented analysis rather than a broad-based evaluation of the totality of the evidence defeats review as a process.

It follows that the argument that the failure to have regard to material facts may potentially result in a wrong decision has no place in review applications. Failure to have regard to material facts must actually defeat the constitutional imperative that the award must be rational and reasonable – there is no room for conjecture and guesswork.”

TIP:        The decision to review an arbitration award must be made on a “bigger picture” assessment of the award considered as a whole. The labour court has clearly warned against a “piecemeal” or “knit-picking” approach which tries to focus on specific findings of fact or reasoning as grounds for review.    

Patrick Deale

labour lawyer & commercial mediator

DEALE ATTORNEYS

Tel: 083 375 8771

Email: patrick@deale.co.za

Web: www.deale.co.za


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