Review applications in terms of section 145 of the Labour Relations Act 66 of 1995

25 Feb 2021

Introduction

Both the Employee and the Employer are able to take an arbitration award or ruling by the Commission for Conciliation, Mediation and Arbitration (hereinafter referred to as “the CCMA”) or relevant Bargaining Council (hereinafter referred to as “the BC”) on review at the Labour Court holding jurisdiction if they are of the opinion that there was an alleged defect in the proceedings, award or ruling by the CCMA or BC.

What is the definition of a defect?

A defect may encompass the following circumstances:

a) The CCMA or BC commissioner committed a misconduct in relation to his or her duties as a commissioner;
b) he or she committed a gross irregularity in conducting the proceedings;
c) he or she exceeded his or her powers as a commissioner; or
d) the award or ruling was improperly obtained.

An award or ruling may also be reviewed if the decision reached by the CCMA or BC commissioner is one which another reasonable CCMA or BC commissioner could not reach in the same set of circumstances. However, the Labour Court may not review any decision or ruling made during conciliation or arbitration proceedings before the issue in dispute has been finally determined by the CCMA or BC, except in circumstances where the Labour Court is of the opinion that it is just and equitable to do so.

The Process of the Review Application

Review Applications to the Labour Court are initiated by what is called a Notice of Motion supported by a founding affidavit deposed to by the Applicant or someone lawfully designated to depose to the founding affidavit on behalf of the Applicant. As stated hereinbefore, the Applicant in Review proceedings could be the Employer or the Employee.

The founding affidavit must set out the grounds on which the Applicant relies to have the award or ruling reviewed successfully by the Labour Court. Review Applications can only be instituted by a party (Employer or Employee) listed in the CCMA or BC award or ruling, or a representative as defined in section 161 of the Labour Relations Act 66 of 1995. Review proceedings must be initiated within six (6) weeks of the Applicant receiving the award or ruling from the CCMA or BC. The Labour Court may condone a late Review Application on good cause shown by way of the submission of a Condonation Application and the other party in turn has the right to oppose the Review Application as well as the Condonation Application.

A case number must be obtained from the Registrar of the Labour Court holding jurisdiction prior to the filing of the aforementioned Notice of Motion and Founding Affidavit. The Review Application must be served on all the Respondents (either the Employee or the Employer) as well as on the CCMA or Bargaining Council before it is filed at the Labour Court. Proof of service on all the aforementioned parties must also be filed at the Labour Court along with the Notice of Motion and Founding Affidavit.

Final Decision by the Labour Court

The enforcement of the CCMA or BC award or ruling by the Respondent may be halted until a final decision regarding the Review Application has been made by the Labour Court. If the award or ruling is ultimately set aside by the Labour Court, the Labour Court may make any order that it considers appropriate in relation to the procedure to be followed in determining the dispute. For example, the Labour Court may rule that the dispute be reverted back to the CCMA or BC and be heard afresh before a different CCMA or BC commissioner, or the Labour Court may rule that it will correct the CCMA or BC award or ruling itself as it sees fit, though the former is the more common occurrence.

Conclusion

The process of a Review Application to the Labour Court is a complex one and it is highly recommended that any Applicant initiating such proceedings enlist the assistance of a specialist labour attorney who is familiar with the process and the rules of the Labour Court. The same would apply to the Respondent if the Respondent opposes the Review Application.

See also:

• A new employee earnings threshold has been issued. What does this mean for employees?
• Protocol for dismissing an employee for poor work performance
• The CCMA – What’s it all about?
• Enforcing CCMA awards without further referrals explained
• The persistent and the vexatious – The ersatz litigant
• The vexatious litigant & review applications

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)