There is a school of thought that considers private arbitration to be quicker and better than going through the CCMA or a Bargaining Council. But before you do so, think carefully about whether you are not placing yourself in a system that limits your rights on review?
It is available to a party in terms of section 145 of the Labour Relations Act to argue that an award from the CCMA or a Bargaining Council can be reviewed because the arbitrator’s decision is one that no reasonable decision-maker could have come to. However, this ground of review is not available in a private arbitration.
Consequently, a mere mistake committed by the arbitrator in the adjudication of a matter will not act as a ground for review as you cannot argue that the result of that mistake is that the decision is one that no reasonable person would have come to. This was the principle that was highlighted in the case of SA Police Service v Erasmus & another (2018) 39 ILJ 460 (LC).
Mrs Erasmus had been employed by the SAPS. During the course of her employment, the SAPS introduced a Representivity and Equal Opportunity Programme (“REOP”). The purpose of the REOP was to enhance employment equity and to ensure equal development opportunities for suitable candidates from designated groups. Mrs Erasmus claimed she was one of the 139 candidates that were recommended for promotion and appointment, and she in particular was recommended for promotion to the rank of brigadier.
Sometime after this, the SAPS dismissed Mrs Erasmus on the grounds that she was medically unfit to fulfil her duties. Aggrieved by the dismissal, Mrs Erasmus approached the Labour Court, contending that her dismissal was unlawful and constituted an unfair dismissal.
The Labour Court concurred with Mrs Erasmus and ordered that her dismissal be set aside, and that Mrs Erasmus should resume her duties at the rank of colonel. Mrs Erasmus argued that her reinstatement by SAPS at the rank of colonel did not take into account the fact that at the time of her dismissal she had already been promoted and appointed to the rank of brigadier pursuant to the REOP. In response, the SAPS disputed Mrs Erasmus’ appointment to the rank of brigadier. As a result, the parties referred the dispute to private arbitration in terms of an arbitration agreement, whereby the arbitrator ruled that Mrs Erasmus was promoted to the rank of brigadier and that there was nothing improper, invalid or unlawful concerning her promotion. The SAPS took the findings of the arbitrator on review and were unsuccessful.
The court confirmed that private arbitrations can only be reviewed in terms of section 33 of the Arbitration Act, which states that an arbitration award may be set aside by a court, if the arbitrator committed a gross irregularity (and not because the decision is unreasonable). It was held that courts should be respectful of the intention of the parties and keep in mind that the purpose of private arbitrations is to ensure the fast and cost-effective resolution of disputes. Furthermore, courts should not be too quick to fault the manner in which the arbitration had been conducted. If courts are too willing to come to the conclusion that gross irregularity compromised the fairness of the arbitration, then the goal and purpose of private arbitrations will be defeated.
The right to seek to review an arbitration award in terms of the expanded grounds of review established through the Sidumo case in the Constitutional Court and the cases that followed that are not available in terms of a review under s33 of the Arbitration Act.
Written by candidate attorney Nontobeko Nkambule and supervised by partner, Ludwig Frahm-Arp.