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The arbitrator’s decision is not always final

Ivan Israelstam
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Section143 (1) of the Labour Relations Act (LRA) provides that: “An arbitration award is final and binding”. This misleads employers and employees into believing that they cannot apply for an arbitrator’s decision to be overturned. In fact, either party 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’. This is different to an appeal because an appeal is made, not against the arbitrator’s conduct, but rather against his/her decision.

Section143 (1) of the Labour Relations Act (LRA) provides that: "An arbitration award is final and binding". This misleads employers and employees into believing that they cannot apply for an arbitrator's decision to be overturned. In fact, either party 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'. This is different to an appeal because an appeal is made, not against the arbitrator's conduct, but rather against his/her decision.

Arbitrator misconduct can and does occur in many different forms including - among 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.

In the case of Best Boland Motors vs Dispute Resolution Centre & others (Contemporary Labour Law Vol. 13 No. 5 page 47) the Labour Appeal Court found that the conduct of the arbitrator suggested bias. In that case:

• The arbitrator and the applicant employee left the proceedings for 10 to 15 minutes both before and after the arbitration hearing and entered into discussions between themselves.

• As they had no acceptable reason for this, the court found that the arbitrator's conduct led the respondent to a reasonable apprehension of bias.

Bias can show itself in other ways too

For example, the arbitrator might assist one party, and not the other, to interrogate witnesses aggressively rather than ask questions for clarity or ignore material evidence.

In County Fair Foods vs Theron NO & others (2001, 2 BLLR 134 LC), the court found the aggressive manner in which the arbitrator questioned witnesses to be unacceptable and therefore set the arbitrator's decision aside.

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 an employee had not used a racial slur against a colleague.

• 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 indeed used a racial slur.

• The court found this and the commissioner's failure to construe the probabilities of the case correctly amounted to a gross irregularity.

• 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 employee then applied to the Labour Court for a review.

• The Labour Court found that the evidence led by the employer was inadequate as proof of the employee's guilt. There had been three or four people who had access to the keys to the safe, anyone of whom could have taken the money.

• The 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.

• As it is the duty of commissioners to take proper account of evidence led, the court found the CCMA award to be both unsustainable and unjustified.

• 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's manager later saw the employee and the arbitrator shaking hands.

• 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 because of irregular conduct by the arbitrator. However, even if the aggrieved party suspects arbitrator misconduct, it is difficult to persuade a court judge that this suspicion is valid and merits the overturning of the award. Failure to use such expertise in such cases could result in the employer losing the case.




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