the use of alternative dispute resolution mechanisms in
TRANSCRIPT
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THE USE OF ALTERNATIVE DISPUTE RESOLUTION MECHANISMS IN LABOURRELATIONS IN THE WORKPLACE IN SOUTH AFRICA.
By
NIGHT TAFADZWA RWODZI (201205906)
Submitted in Fulfilment of the Requirements for the Degree of
MASTER OF LAWS
In the Faculty of
LAW
At the
UNIVERSITY OF FORT HARE
SUPERVISOR: Dr Nombulelo Lubisi
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Table of Contents
ABSTRACT ..............................................................................................................viiDECLARATION ....................................................................................................... viiiACKNOWLEDGEMENTS ..........................................................................................ixDEDICATION ............................................................................................................. xLIST OF ACRONYMS................................................................................................xiCHAPTER ONE ......................................................................................................... 11. BACKGROUND TO THE STUDY......................................................................... 1
1.1 Introduction .................................................................................................... 11.2 Research Problem ......................................................................................... 51.3 Research Aim ................................................................................................. 61.4 Research Objectives...................................................................................... 71.5 Research Questions ...................................................................................... 71.6 Significance of the Study .............................................................................. 71.7 Literature Review ........................................................................................... 91.8 Definition of Concepts................................................................................. 19
1.8.1 The Meaning of Alternative Dispute Resolution ....................................... 191.8.2 What is Labour Relations......................................................................... 201.8.3 Nature, Scope and Causes of Workplace Disputes ................................. 211.8.4 Dispute Types.......................................................................................... 23
1.9 Research Methodology................................................................................ 261.10 Limitations to the Study ............................................................................ 261.11 Chapter Outline .......................................................................................... 27
CHAPTER TWO....................................................................................................... 282. HISTORICAL PERSPECTIVES OF LABOUR RELATIONS AND LABOURDISPUTE RESOLUTION IN THE REPUBLIC OF SOUTH AFRICA ....................... 28
2.1 Introduction .................................................................................................. 282.2 Historical Development ............................................................................... 29
2.2.1 Period from pre 1924 to the Implementation of Apartheid Policy in 1948 292.2.2 Period from Apartheid to 1994 ................................................................. 322.2.3 The Post 1994 Period .............................................................................. 38
2.3 The Structure of Labour Dispute Settlement Bodies. ............................... 412.3.1 The Commission for Conciliation, Mediation and Arbitration (CCMA)...... 412.3.2 The Bargaining Councils.......................................................................... 442.3.3 The Private Agencies............................................................................... 47
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2.3.4 The Labour Court..................................................................................... 482.3.5 The Labour Appeal Court......................................................................... 49
2.4 Dispute Prevention Mechanisms ................................................................ 502.4.1 Workplace Forums................................................................................... 50
2.5 Conclusion ................................................................................................... 53CHAPTER THREE................................................................................................... 553. INTERNATIONAL LABOUR STANDARDS GOVERNING LABOUR DISPUTERESOLUTION.......................................................................................................... 55
3.1 Introduction .................................................................................................. 553.2 The International Labour Organisation (ILO)............................................. 563.3 ILO Conventions and Recommendations on Labour Dispute Resolution.............................................................................................................................. 57
3.3.1 Collective Bargaining Convention (No.154) ............................................. 573.3.2 Freedom of Association and Protection of the Right to OrganizeConvention (No. 87)........................................................................................... 593.3.3 The Right to Organise and Collective Bargaining Convention (No. 98) .... 613.3.4 Termination of Employment Convention (No. 158) ................................... 643.3.5 Labour Relations (Public Service) Convention (No. 151).......................... 663.3.6 The Voluntary Conciliation and Arbitration Recommendation (No. 92) andthe Examination of Grievances Recommendation (No. 130) ............................. 683.3.7 The ILO Guide on Labour Dispute Systems ............................................ 70
3.4 The International Bill of Human Rights ...................................................... 713.4.1 The Universal Declaration of Human Rights (UDHR) .............................. 713.4.2 The International Covenant on Economic, Social and CulturalRights (ICESCR)................................................................................................ 71
3.5 Regional Labour Standards ........................................................................ 723.5.1 The European Union (EU) Experience and the Charter of FundamentalRights of the European Union............................................................................ 72
3.6 The South African Approach ...................................................................... 743.7 Conclusion ................................................................................................... 75
CHAPTER FOUR..................................................................................................... 764. LABOUR DISPUTE RESOLUTION UNDER THE LABOUR RELATIONS ACT 66OF 1995 ................................................................................................................... 76
4.1 Introduction .................................................................................................. 764.2 Dispute Resolution Processes ................................................................... 76
4.2.1 Resolution of Labour Disputes through Negotiation................................. 764.2.2 The Mediation Process ............................................................................ 80
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4.2.3 Statutory Conciliation Procedure ............................................................. 814.2.4 Resolution of Labour Disputes through Arbitration .................................. 824.2.5 Adjudication as a Form of Resolving Labour Disputes ............................ 834.2.6 Resolving Labour Disputes through Conciliation-Arbitration (Con-arb).... 844.2.7 Pre-Dismissal and Advisory Arbitration.................................................... 854.2.8 Refusal to Work Aimed at Resolving a Dispute ....................................... 86
4.3 Case Law on Labour Dispute Resolution .................................................. 894.3.1 CUSA V Tao Ying Metal Industries CCT 40/07 [2008] ZACC15.............. 894.3.2 Mashego v Cellier JR 2721/13 [2015] ZALCJHB 415 .............................. 934.3.3 Makuse v Commission for Conciliation, Mediation and Arbitration [2015]ZALCJHB 265.................................................................................................... 95
4.4 Remedies for Unfair Dismissal and Unfair Labour Practice s 193........... 974.4.1 Ethekwini Municipality v Hadebe (DA17/14) [2016] ZALAC 14.............. 1004.4.2 Monare v South African Tourism and CCMA [2016] 2 BLLR 115 (LAC) 1014.4.3 Sibeko v Xstrata Coal South Africa 2016 37 ILJ 1230 (LC) ................... 103
4.5 Legal Representation at Disciplinary Hearings and at the CCMA ......... 1044.5.1 Legal Representation at Disciplinary Hearings ...................................... 1044.5.2 Legal Representation at the CCMA ....................................................... 106
4.6 An Analysis of Rule 25 of the CCMA Rules ............................................. 1094.7 Case Law on Interdicting Disciplinary Hearings ..................................... 111
4.7.1 Zondo v Uthukela District Municipality (2015) 36 ILJ 502 (LC) .............. 1114.7.2 Ngcongo v University of South Africa (J 2950/2011) [2012] ZALCJHB 146......................................................................................................................... 1134.7.3 Mahoko v Mangaung Metropolitan Municipality (JA 878/13) [2013]ZALCJHB 63.................................................................................................... 114
4.8 An Analysis of Current Labour Dispute Resolution Mechanisms and theirEffectiveness..................................................................................................... 1154.9 Conclusion ................................................................................................. 117
CHAPTER FIVE ..................................................................................................... 1185. THE REVIEW OF CCMA ARBITRATION AWARDS UNDER THE LRA ......... 118
5.1 Introduction ................................................................................................ 1185.2 Distinction between Appeals and Reviews within the Scope of the LRA............................................................................................................................ 1195.3 The Role of Labour Courts in Reviewing CCMA Arbitration Awards .... 121
5.3.1 The Procedure for Bringing a Review Application.................................. 1215.4 The Nature and Grounds for Review Proceedings (s 145) ...................... 121
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5.4.1 The Commissioner Committed a Misconduct in Relation to the Duties ofthe Commissioner as an Arbitrator s 145(2) (a) (i) ........................................... 1225.4.2 The Commissioner Committed a Gross Irregularity in the Conduct of theArbitration Proceedings s 145(2) (a) (ii) ........................................................... 1235.4.3 The Commissioner Exceeded the Commissioner’s Powers s 145(2) (a) (iii)......................................................................................................................... 1275.4.4 The Award has been Improperly Obtained s 145(2) (b) ......................... 129
5.5 Grounds for Review in Terms of Promotion of Administrative Justice Act3 of 2000 (PAJA)................................................................................................ 130
5.5.1 The Administrative Nature of CCMA Awards ......................................... 1305.6 The Test for Review Prior to Sidumo ....................................................... 131
5.6.1 The Carephone Test: Justifiability.......................................................... 1315.6.2 The Rationality or Justifiability Test ....................................................... 133
5.7 The Test for Review in Sidumo ................................................................. 1335.7.1 The Test of Reasonableness ................................................................. 133
5.8 The Aftermath and Departure of Sidumo Test......................................... 1365.8.1 Gaga v Anglo Platinum Ltd (2012) 33 ILJ 329 LAC; [2012] 3 BLLR 285(LAC) ............................................................................................................... 1365.8.2 Afrox Health Ltd v Commission for Conciliation, Mediation and Arbitration(2012) 33 ILJ 1281 (LAC); [2012] 7 BLLR 649 (LAC) ...................................... 1375.8.3 Herholdt v Nedbank Ltd (2012) 33 ILJ 1789 (LAC)................................ 137
5.9 The Revisit of Sidumo Test ....................................................................... 1385.9.1 Herholdt v Nedbank Ltd (2013) 34 ILJ 2795 (SCA) ............................... 1385.9.2 The Legal Effect of a Review as of Date................................................ 141
5.10 Conclusion ............................................................................................... 142CHAPTER SIX ....................................................................................................... 1446. FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.............................. 144
6.1 Introduction ................................................................................................ 1446.2 Findings ...................................................................................................... 144
6.2.1 Internal Mechanisms.............................................................................. 1446.2.2 The Commission for Conciliation, Mediation and Arbitration (CCMA).... 1466.2.3 The Bargaining Councils and Collective Bargaining .............................. 1476.2.4 Labour Courts and Review of CCMA Arbitration Awards....................... 1486.2.5 The Labour Relations Amendment Act 6 of 2014 .................................. 150
6.3 Recommendations ..................................................................................... 1516.3.1 Internal Mechanisms.............................................................................. 151
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6.3.2 The CCMA ............................................................................................. 1536.3.3 Collective Bargaining and Negotiation ................................................... 1546.3.4 Review of CCMA Arbitration Awards ...................................................... 1546.4 Concluding Remarks .............................................................................. 155
BIBLIOGRAPHY.................................................................................................... 157
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ABSTRACT
Disputes are part and parcel of human nature and always manifest everywhere
including the employment arena. It is this inevitability of disputes that warrants
measures to be in place so as to effectively and without delay, resolve them in order
to realise industrial peace. This study is prompted by the way industrial disputes have
been handled in the past and the contemporary era. South African legal system
provides Alternative Dispute Resolution (ADR) mechanisms to the use of adjudication
by the ordinary courts in resolving workplace disputes. However, a set of methods
made up of conciliation, mediation and arbitration have not been effective in resolving
labour disputes owing to a variety of factors. Failure to provide a speedy resolution of
disputes, large number of referrals to the Commissioner for Conciliation, Mediation
and Arbitration (CCMA) and a large number of review applications lodged at the
Labour Courts are some of the contributory factors that delay matters in bringing to
finality. It is therefore the aim of this study, to proffer plausible recommendations that
intends to cure and provide a silver bullet to the lacuna which exists in the current
labour dispute system.
To achieve the above stipulated aim, a general background of the study, accompanied
by the chronicles of dispute resolution statutes and mechanisms is deliberated.
Thereafter, South African compliance with International Labour Organisation (ILO)
Conventions is discussed to assess the efficacy of labour dispute mechanisms. A
critical analyses of the effectiveness of ADR within the scope of Labour Relations Act
(LRA) 66 of 1995 will then follow. Although there are some limitations to this study, it
should be noted that relevant legislation passed by parliament, cases, together with
international and regional conventions ratified by the government, scholarly articles,
journals and books are used to strengthen arguments and provide guidance in
achieving the aims and objectives of the study.
Key words: Alternative Dispute Resolution; Labour Disputes; Efficiency; Informality;
Review Applications; Industrial Peace.
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DECLARATION
I, Night Tafadzwa Rwodzi hereby declare that all the work contained herein is my own
original work and that all ideas that are not mine have been duly acknowledged and
referenced according to Speculum Juris and that this dissertation has not been
previously submitted in its entirety or in part to any other university towards any other
degree.
Candidate: Night Tafadzwa Rwodzi
Signature: ______________________
Dated: November 2017
East London
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ACKNOWLEDGEMENTS
Firstly, I would love to thank Jehovah, the Lord Almighty, for enabling me overcome
and sail through the obstacles encountered along this journey Hallelujah!
My second appreciation goes to my supervisor, Dr N Lubisi whom despite her busy
schedules as the Dean of the Law Faculty, dedicated her time to my Project. The
constructive criticisms and guidance were indispensable and cannot be
overemphasized. It is also worth mentioning that Dr Lubisi taught me Labour Law, a
module that formed part of the LLB Degree curriculum. Her teachings back then
inspired me to undertake post graduate studies in Labour Law under her mentorship.
I have also immensely benefited from the professional courtesy of my Lecturers, Mr N
Chetty and Adv T Maloka, whom have shown kindness and encouragement, and also
from my learned colleagues such as Dauglous Tsanyau et al.
Special thanks goes to my family especially my parents, Estere and Henry Rwodzi for
teaching me life lessons that can never be learnt from textbooks and my sisters, Nestar
and Niata who also believed in me.
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DEDICATION
I Dedicate this Dissertation to the Rwodzi Dynasty.
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LIST OF ACRONYMS
ADR Alternative Dispute Resolution
AMCU Association of Mineworkers and Construction Union
BCEA Basic Conditions of Employment Act
CC Constitutional Court
CCMA Commission for Conciliation, Mediation and Arbitration
CFA Committee Freedom of Association
COSATU Congress of South African Trade Unions
EEA Employment Equity Act
EU European Union
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
ICJ International Court of Justice
ILJ Industrial Law Journal
ILO International Labour Organization
IMSSA Independent Mediation Service of South Africa
LAC Labour Appeal Court
LC Labour Court
LRA Labour Relations Act
NEDLAC National Economic, Development and Labour Council
NUM National Union of Mineworkers
PSBC Public Service Bargaining Council
RSA Republic of South Africa
SAA South African Air-ways
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SCA Supreme Court of Appeal
SMME Small, Medium and Micro Enterprises
UDHR Universal Declaration of Human Rights
UIA Unemployment Insurance Act
UN United Nations
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CHAPTER ONE
1. BACKGROUND TO THE STUDY
1.1 Introduction
For a very long period, litigation played a pivotal role in dealing with employment
disputes and deliverance of justice.1 However, the adversarial nature of litigation with
the ‘win all or lose all’ attributes have been found to be very expensive, time consuming
and unconducive to continued business or social relationships.2 This led to the
emergence of Alternative Dispute Resolution (ADR) in South Africa.3 The ADR system
simply points out to methods and procedures aimed at enabling resolution of disputes
outside the court expeditiously and informally.4 Moreover, disputes and conflicts are
inevitable at workplaces or anywhere in the society, hence need for an appropriate
structure that addresses such challenges amicably.5
Prior to the Labour Relations Act,6 it is worth mentioning that the dispute resolution
system of South Africa was full of problems.7 The South African labour relations
frequently provided a background for other struggles such as racial supremacy
together with political salvation of the African masses.8 The classic struggle between
labour and capitalism first manifested itself in gold mining industry in the early 1900s,
and this culminated in miners’ strike in 1922 that took on the form of armed insurrection
1 Botha and Mischke “A New Labour Dispensation for South Africa” 1997 Journal of African Law 134.See also Mwenda Paradigms of Alternative Dispute Resolution and Justice Delivery in Zambia (LLD-thesis, UNISA, 2006) 1.
2 Haley “Mediation and Access to Justice in Africa: Perspectives from Ghana” 2015 Harvard NegotiationLaw Review 60. See also Boulle “A History of Alternative Dispute Resolution” 2005 ADR Bulletin 130.
3 Okharedia “The Emergence of Alternative Dispute Resolution in South Africa: A Lesson for OtherAfrican Countries” A Paper Presented at the 6th African Regional Congress of Industrial Relations,Lagos Nigeria, 24-28 January 2011 1.
4 Haley 2015 Harvard Negotiation Law Review 61.5 Animashaun, Odeku and Nevondwe “Impact and Issues of Alternative Dispute Resolution in South
Africa with Emphasis on Workplace Dispute” 2014 Mediterranean Journal of Social Sciences 678.6 Labour Relations Act 66 of 1995 (hereinafter referred to as the LRA).7 Okharedia op cit note 3, 2. See also Mahapa and Watadza “The Dark Side of Arbitration and Conciliation
in Zimbabwe” 2015 Journal of Human Resources Management and Labor Studies 65. And also Backerand Olivier Guide to the New Labour Relations Act (1996) 7.
8 Cowling “Conciliation as a Means for Dispute Settlement in Labour Disputes-the South AfricaExperience” 2008 ADR Bulletin 81.
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and necessitated the government calling out the armed force to restore order.9 This
was obviously because it was no longer possible to leave it to the parties to resolve
their disputes, then the government realised the need for regulating disputes and the
Industrial Conciliation Act10 was enacted. The Conciliation Act required the parties to
any labour dispute to submit the dispute to a conciliation process as a condition for
any strike and it was only if a dispute remaining unresolved that the chair of the
Conciliation Board would issue a certificate after which parties could engage in a strike
or lockout.11
However, the Industrial Court which was set up to deal with labour disputes soon fell
into disrepute as a labour dispute resolution mechanism because being initially
intended to operate effectively, its statutory approaches were examined to be
inefficient, prolonged, complex, and full of technicalities.12 In addition, instead of
reducing the number of disputes, Industrial Courts created additional disputes and
reinforced industrial action.13 Furthermore, the Industrial Court was exterior to the
legal ladder and as such, had low ranking leading to considerable delays in appeals
from Labour Court to Labour Appeal Court.14 In Chevron Engineering (Pty) Ltd v
Nkambule,15 the matter took 10 years to be finalised when employees were dismissed
for participating in an unlawful strike. More so, the Conciliation Boards were not
functioning effectively and there was usually a considerable delay around 4 to 6
months in settling them, and this inevitably led to the disillusionment of the parties
concerned with the process.16
Provoked by the unsuccessfulness of Industrial Courts and Conciliation Boards, the
wave begun to turn away from adjudication in preference of ADR in the employment
arena.17 This renaissance was predominantly caused by the establishment of the
9 Bhorat, Naidoo and Yu “Trade Unions in an Emerging Economy: The Case of South Africa” 2014Development Policy Research Unit 3.
10 Industrial Conciliation Act 11 of 1924.11 Cowling 2008 ADR Bulletin 83.12 Brassey, Cameron, Cheadle and Olivier The New Labour Law: Strikes, Dismissals and the Unfair
Labour Practice in South African Law (1987) 9.13 Finnemore and Van Rensburg Contemporary Labour Relations 2ed (2002) 9. Also see Smith a Critique
of Dispute Resolution in the Public Service (LLM-thesis, NMMU 2008) 10.14 Brassey et al 13.15 Chevron Engineering (Pty) Ltd v Nkambule 2004 3 BLLR 214 (SCA).16 Cowling 2008 ADR Bulletin 82.17 Bhorat et al 2014 Development Policy Research Unit 3. See also Haley 2015 Harvard Negotiation Law
Review 61.
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Independent Mediation Service of South Africa (IMSSA) in 1984.18 It was composed
of a group of academics, lawyers, trade unionists and employers who wanted a sound
dispute resolution to provide mediation, arbitration and facilitation of employment
disputes in South Africa.19 By the end of the 1980s, IMSSA had branched out into
community mediation due to its success in handling employment disputes.20
This study is hinged on the fact that people who are poor and disadvantaged, face
countless obstacles in accessing justice due to the formal court systems which are
plagued by delay, complicated procedures, exorbitant costs and huge backlog of
cases.21 Because of the delays caused by the courts, an alternative has been
established in order to circumvent challenges associated with the litigation route.22
Mediation, Conciliation and Arbitration are employed as alternative dispute resolution
mechanisms to the traditionally used cumbersome litigation process. The litigation
process is usually long and cumbersome and the parties have little or no influence to
the process in terms of speed.23 It is undisputed that workplace disputes prevents the
development of regular economic activities and have detrimental effects on the
general welfare of nations.24 However, history shows that states have tended to evade
workplace disputes by elusion, concealment or repressions and such approaches
impair the enjoyment of fundamental principles such as the right to strike and freedom
of association that are recognised by International Labour Organisation (ILO).25
However, the labour relations between employers and employees improved over the
past few decades.26 The advent of constitutional democracy, and the LRA of 1995,
revolutionised dispute resolution in South Africa drastically as s 112 of the LRA,
established an independent body, the Commissioner for Conciliation, Mediation and
18 Brand “Amicable Dispute Resolution in South Africa” 2011 Kluwer Law International 592.19 Brand 2011 Kluwer Law International 593.20 Alternative Dispute Resolution Practitioners Guide available at
https://www.usaid.gov/sites/default/files/documents/1868/200sbe.pdf 24 (accessed on 21-02-2016).21 Benjamin “Conciliation, Arbitration and Enforcement: The CCMA’s Achievements and Challenges” 2009
Industrial Law Journal 26. See also Chakma “Alternative Dispute Resolution under Labor Law inBangladesh” 2012 SSRN Electronic Journal 4.
22 Bendeman “An Analysis of the Problem of the Labour Dispute Resolution System in South Africa” 2006African Journal on Conflict Resolution 81
23 Mahapa and Watadza 2015 Journal of Human Resources Management and Labor Studies 66.24 Bhorat, Jacobs and Van der Westhuizen “Do Industrial Disputes Reduce Employment? Evidence from
South Africa” 2013 Africa Growth Initiative 1. See also Sappia “Labour Justice and Alternate DisputeResolution of Collective and Individual Labour Conflicts” 2002 University of Toronto Law Journal 2.
25 Sappia 2002 University of Toronto Law Journal 8.26 Steadman “Handbook on Alternative Labour Dispute Resolution” 2008 ILO International Training Centre
7.
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Arbitration (CCMA).27 The creation of an independent commission was a prime shift
in labour relations in that previously, the state took ultimate control in resolution of
disputes.28 However, under the LRA, power is split between employers, labour and
state jointly.29 ADR methods are employed by CCMA in remedying parties’ disputes
and according to s 115 (1) (a) of the LRA, the CCMA is established to resolve disputes
referred to it through conciliation.30 In the same vein, s 127 (1) (a) of the LRA, grants
accreditation by the CCMA to Private Agencies or Bargaining Councils to conduct
conciliation.31
The CCMA has been useful in resolving labour disputes and was established as a
statutory dispute resolution body which could deal with disputes at no cost and without
the necessity of legal expertise.32 The LRA provides two forms for the resolution of
dismissal disputes namely Labour Court or Arbitration either under the auspices of the
accredited Bargaining Councils or CCMA or Private Agencies.33 Moreover, labour
disputes are separated into two categories namely individual and collective.34
Collective disputes can further be split into sub classification of rights and interests.35
Disputes of right are those disputes that emerge from a contravention of an existing
right which has been acquired by virtue of an employment contract whilst a disputes
of interest appear when parties seek to have working conditions changed for example
an increase in wage.36
27 Slabbert and Swanepoel Introduction to Employment Relations Management 2ed (1998) 42.28 Van Jaarsveld and Van Eck Principles of Labour Law (1998) 258.29 Finnemore and Van Rensburg 33.30 S 115 (1) (a) of the LRA states that “the commission must attempt to resolve, through conciliation, any
dispute referred to it in terms of this Act.”31 S 127 (1) of the LRA stipulates that “any council or private agency may apply to the governing body in
the prescribed form for accreditation to perform any of the following functions-(a) resolving disputes through conciliation; and(b) arbitrating disputes that remain unresolved after conciliation, if this Act requires arbitration.”
32 Bendeman “Alternative Dispute Resolution in the Workplace-The South African Experience” 2007African Journal on Conflict Resolution 142.
33 Grogan Dismissal 2ed (2014) 598.34 Rycroft and Jordan A Guide to South African Labour Law (1992) 250.35 Animashaun et al 2014 Mediterranean Journal of Social Sciences 680. See also Arputharaj and Gayatri
“A Critical Analysis on Efficacy of Mechanism to Industrial Dispute Resolution in India” 2014International Journal of Current Research and Academic Review 328.
36 Bosch, Molahleli and Everett The Conciliation and Arbitration Handbook (2004) 26.
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1.2 Research Problem
Speedy and effective resolution of labour disputes being one of the LRA's primary
objects,37 the main problem however, is that the labour dispute resolution of the
Republic of South Africa, is yet to be informal, effective and speedy, as intended by
the LRA.38
Firstly, Labour lawyers and consultants have assumed a very important position in the
dispute resolution system of South Africa especially where individual labour disputes
are concerned.39 Their impact in labour dispute system has increased over the past
few years despite legislative attempts to keep them out of the process.40 It appears
courts are likely going to constitutionalise the right to legal representation at CCMA
arbitration proceedings,41 since the current legal system is welcoming lawyers in
dispute resolution process rather than denying them.42
Secondly, a high number of review applications instituted in the Labour Courts, goes
against the spirit of reaching finality and speedy resolution of disputes.43 Either the
test for reviewing arbitration awards is not stringent enough to limit review applications,
37 Vettori “Enforcement of Labour Arbitration Awards in South Africa” 2013 South African Mercantile LawJournal 245. See also s 1 (d) (iv) of the LRA and also Clark “Arbitration in Dismissal Disputes in SouthAfrica and the UK: Adversarial and Investigative Approaches” 1997 Industrial Law Journal 609.
38 Van Niekerk “Speedy Social Justice: Streamlining the Statutory Dispute Resolution Process” 2015Industrial Law Journal 837. See also Steenkamp and Bosch “Labour Dispute Resolution under the 1995LRA: Problems, Pitfalls and Potential” 2012 Acta Juridica 120.
39 Bendeman 2006 African Journal on Conflict Resolution 86. See also Benjamin 2009 Industrial LawJournal 48.
40 See Law Society of the Northern Province v Minister of Labour 2013 1 SA 468 (GNP) where Tuchten Jdeclared CCMA rule 25(1) (c) of limiting legal representation irrational. This further creates a gap ofmoving back to adversarialsm whilst the purpose of dispute resolution is moving away fromadversarialsm.
41 Selala “Constitutionalising the Right Legal Representation at CCMA and Arbitration Proceedings: LawSociety of the Northern Provinces v Minister of Labour 2013 1 SA 468 (GNP)” 2013 PotchefstroomElectronic Law Journal 397.
42 It is undoubted that lawyers make a process expensive and legalistic as they raise points in limine. Theinvolvement of legal representatives inevitably brought about formalised and technical arguments anda strict observance of procedures. So the intervention of lawyers raises questions of affordability andexpeditiousness because the CCMA was created to deal with indigent parties at no cost and withoutthe need of legal assistance. Furthermore, the reason for preferring arbitration to adjudication in labourdisputes is that of unique exigencies of employment relationships, which commonly entail daily,personal interactions between employers and their employees, and which require endurance, patienceand empathy over time to succeed. Given these exigencies, the adversarial approach to disputeresolution characteristic of judicial proceedings is poorly suited to resolving labour disputes.
43 Van Niekerk 2015 Industrial Law Journal 837. See also Benjamin 2009 Industrial Law Journal 47. Andalso Steenkamp and Bosch 2012 Acta Juridica 122.
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hence the floodgates of cases in Labour Courts,44 or the commissioners’ competency
in arbitrating and selecting appropriate remedy in resolving workplace disputes is
questionable.45 There is no doubt that too much review applications are insensitive to
the informality that the LRA intended to achieve.46
Moreover, considerable delay of resolving workplace disputes is caused by the
application to the Labour Court to interdict disciplinary hearings.47 These delay
techniques are usually employed by employees who do not want the dispute to reach
its finality.48 Snyman AJ observed that urgent applications to interdict disciplinary
hearings should not be the norm as they seem to have become.49 He further reiterated
that such conduct of court’s intervention in disciplinary hearings is against the scope
and spirit of the LRA where structures for an effective, speedy resolution have been
created.50
1.3 Research Aim
This study examines the pre-1994 and current labour dispute resolution, and attempts
to propose recommendations that provides for a friendly, just, affordable, effective and
expeditious settlement of disputes. Furthermore, it is the primary aim of this study to
illuminate the shortcomings in the current dispute resolution when it comes to
affordability, efficiency and the review of CCMA arbitration awards. In the similar
fashion, to provide for an effective dispute prevention structure, such as a workplace
44 Fergus “Reviewing an Appeal: A Response to Judge Murphy and the SCA” 2014 Industrial Law Journal50. Also see Howett “Is it Reasonable for CCMA Commissioners to Act Irrationally” 2008 Industrial LawJournal 1628. In addition, the caseload in Labour Courts is alarming, and appeals seem to be disguisedas reviews.
45 Howett 2008 Industrial Law Journal 1629. See also Sharpe “Reviewing CCMA Arbitration Awards:Towards Clarity in the Labour Courts” 2000 Industrial Law Journal 2160. Also see the case of ToyotaSA Motors (Pty) Ltd v Commissioner for Conciliation, Mediation and Arbitration (CCT 228/14) [2015]ZACC 557 where it was highlighted that commissioners seem to be developing a tendency of losingarbitration records. And also Fergus 2014 Industrial Law Journal 52-54.
46 Fergus “The Distinction between Appeals and Reviews-Defining the Limits of the Labour Court'sPowers of Review” 2010 Industrial Law Journal 1557. Also see the case of Herholdt v Nedbank Ltd(2012) 23 ILJ 1789 (LAC) paras 53-56 where according to the court, reviews, just like appeals, leads tolengthy proceedings, lawyers, legalism, inordinate delays and high costs.
47 South Africa Municipal Workers Union on behalf of Members v Kopanong Local Municipality (2014) 35ILJ 1378 (LC) (hereinafter referred to as Kopanong Local Municipality).
48 Ibid.49 Kopanong Local Municipality para 33.50 Moroenyane v Station Commander of the South Africa Police Services [2016] ZALCJHB 330 para 1.
7
forum, before seeking external bodies such as the CCMA for resolution of disputes. It
is therefore the ultimate aim of this study to put forward recommendations that may
assist in establishing an effective ADR mechanism which deal with labour disputes
without disputants resorting to strikes, lockouts and litigation.
1.4 Research Objectives
Outlined below are specific research objectives considered for the basis of this study:
Examine the legal and institutional framework of South African labour dispute
resolution.
Evaluate and examine the gaps and performance of relevant institutions in
labour dispute resolution.
Assess and examine future prospects of ADR in labour disputes and make
recommendations for improvement, both in short term and long term.
1.5 Research Questions
The research seeks to find answers to the following questions:
What is the legal and institutional framework on ADR and labour dispute
resolution in South Africa?
What are the gaps and loopholes in labour dispute resolution?
What are the future prospects of ADR in labour disputes and recommendations,
both in short term and long term?
1.6 Significance of the Study
With a swift boost of globalisation and the rivalry for goods and services in the market,
South Africa realised that improving their labour relations and creating a conducive
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environment for industrial peace, is essential for attracting foreign and domestic
investments.51 Labour peace is of pivotal significance in any workplace and the
attainment thereof, is dependent on cost-saving, fruitful and speedy resolution of
labour disputes.52 The LRA seeks to advance economic development, social justice
and labour peace.53 For instance, the renowned Marikana tragedy and the labour
unrest of 2012, resulted in twelve billion rand fall in mine production owing to the
ineffective dispute resolution structure.54 In 2014, approximately six billion rand in
wages were lost due to strikes which had considerable negative impact on the
economy.55 Likewise, the former Finance Minister Nene, observed that strikes in
mining sector will continue to impact negatively on South Africa’s economic growth.56
Additionally, South Africa as a signatory to the International Labour Organisation (ILO),
is bound by the Conventions and Recommendations of the ILO.57 From the point of
ILO, the idea of settling labour disputes should be peaceful through the efforts of the
parties themselves, so that it is unnecessary for them to resort to the use of power in
form of strikes and lockouts.58 It is unquestionable that industrial actions have far
reaching consequences as it leads to Loss in production, investment, employment and
corrosive socio-political effects.59 Article 8 of ILO Convention No 151,60 encourages
resolution of employment disputes through negotiation between parties or through an
independent and impartial machinery such as mediation, conciliation and arbitration.61
51 Steadman 2008 ILO International Training Centre 7.52 Le Roux “Employment: A Dodo, or Simply Living Dangerously” 2014 Industrial Law Journal 41.53 See the case of Chillibush Communications (Pty) Ltd v Gericke (2010) 31 ILJ 1350 (LC) para 19.54 Leon “The Mining Industry after Marikana” 2013 available at www.politicsweb.co.za/news-and-
analysis/the-mining-industry-after-marikana (accessed on 17-03-2016).55 CNBC News “Mining strikes shrink South Africa’s economy” available at
https://www.cnbc.com/2014/05/28/mining-strikes-see-south-africas-economy-shrink.html (accessedon 26-08-2018). See also Calitz “Violent, Frequent and lengthy Strikes in South Africa: Is the Use ofReplacement Labour Part of the Problem?” 2016 South African Mercantile Law Journal 437.
56 Ibid.57 Du Toit, Woolfrey, Murphy, Godfrey, Bosch and Christie Labour Relations Law: A Comprehensive
Guide 3ed (2000) 151.58 Du Toit et al 151.59 Murwirapachena “Exploring the Incidents of Strikes in Post-Apartheid South Africa” 2014 International
Business & Economics Research Journal 556-558. See also Odeku “An Overview of the Right to StrikePhenomenon in South Africa” 2014 Mediterranean Journal of Social Sciences 697.
60 Labour Relations (Public Service) Convention No. 151 (1978).61 Article 8 of Convention No 151 states that “the settlement of disputes arising in connection with the
determination of terms and conditions of employment shall be sought, as may be appropriate to nationalconditions, through negotiation between the parties or through independent and impartial machinery,such as mediation, conciliation and arbitration, established in such a manner as to ensure theconfidence of the parties involved.”
9
Moreover, it is against the background of this study that justice is a keystone to a
flourishing democracy and where access to justice is restricted, it poses a menace to
stability of that nation.62 Social justice in labour law requires decision-makers in courts,
labour forums and disciplinary panels to be vigilant in the execution of their judicial or
quasi-judicial mandate.63 By the same token, they must thrive to conduct themselves
with absolute impartiality and integrity hence promotion of economic development and
social justice as per s 1 of the LRA.64 Furthermore, the link between the LRA and the
Constitution is a significant one because the LRA exists for the purpose of advancing
social justice.65 In addition, the LRA seeks to fulfil one of its primary object which is
the right to fair labour practice enshrined in the Constitution.66
Based on the arguments advanced above, it is undoubted that an efficient labour
dispute system assists in containing labour disputes within an economically and
socially justifiable bounds to realise industrial peace.67 This in turn contributes to the
preservation of a climate that is favourable to development, economic triumph and
social equity which South African government strive to achieve and maintain.68
1.7 Literature Review
Benjamin69 expounds the shortcomings in the enforcement of arbitration awards as
employers relax to see if employees have patience and resources to process the
awards through review, certification and execution in order to enforce them. He
alludes that employers use the institute of reviews as a strategic foot-dragging to delay
enforcement of arbitration awards.70 He goes on to mention that it takes about 23
62 Ntuli “Policy and Government’s Role in Constructive ADR Developments in Africa” Presented at aConference on ADR and Arbitration in Africa, Cape Town on 28-29 November 2013 11.
63 Matlou “Understanding Workplace Social Justice within the Constitutional Framework” 2016 SouthAfrican Mercantile Law Journal 546.
64 Ibid.65 Matlou 2016 South African Mercantile Law Journal 548.66 S 23 of the Constitution of 1996.67 Benjamin and Cooper “South African Labour Law: A Twenty-Year Assessment” 2016 Swiss Programme
for Research on Global Issues for Development 4.68 Bhorat et al 2013 Africa Growth Initiative 3.69 Benjamin 2009 Industrial Law Journal 40. See also Vettori 2013 South African Mercantile Law Journal
247. And also Steenkamp and Bosch 2012 Acta Juridica 130.70 Benjamin 2009 Industrial Law Journal 41. See also Vettori 2013 South African Mercantile Law Journal
248.
10
months from the date of the arbitration award for the Labour Court to hear a review
application and 3 months for judgment to be given and further delays emanating from
the fact that there are 3 levels of appeal available against Labour Court decisions.71
This therefore shows that reviews are used to thwart the enforcement of awards.
Furthermore, Benjamin elucidates that employees who receive arbitration awards in
their favour are required to have them certified to obtain payment, of which certification
takes place on an average of 7 months after the award is granted.72 Therefore
employers can wait to see before having payed compensation in terms of awards and
employees will be unable to manoeuvre through all procedural channels that are
required to enforce an award.73 He goes on to mention that even if an award has been
certified, the employee is still required to have a writ issued by the labour court before
the award can be executed by the sheriff of the court.74 Additionally, the issue of
affordability and accessibility comes into question when a poor employee is required
to put security to cover costs when he wishes to have the sheriff attach employer’s
assets to obtain compensation.75 Therefore this requirement undermines the capacity
of the CCMA to provide employees with access to expeditious and cheap justice.76
71 Ibid. see also the case of AG’s Distributors v CCMA (2009) 30 ILJ 1810 (LC), where an employee wasassaulted by a co-worker and ended up all being dismissed. In the Arbitration, the commissioner foundthat the dismissals were unfair, however, the situation of dismissed employees aggravated by the factthat 4 months after the award was issued, the court suspended the execution of the award pending theoutcome of the review application. 20 months later, the review had still not been finalised because ofthe employers delay. On review, the court highlighted that the labour dispute system itself has to beblamed for failing to bring justice to the most vulnerable people as Cassim AJ at para 7 indicated that“a waiting of 2 years and 8 months renders illusory claims of a fair legal system, in particular to a claimto protect the poor and the vulnerable and to redress injustices of the past.”
72 Benjamin 2009 Industrial Law Journal 44. Also see Steenkamp and Bosch 2012 Acta Juridica 130.73 Ibid. See also Vettori 2013 South African Mercantile Law Journal 249.74 Ibid. See also Vettori 2013 South African Mercantile Law Journal 250.75 Benjamin 2009 Industrial Law Journal 45.76 Buthelezi “Enforcement of CCMA Default Awards” 2012 De Rebus 34.
11
However, Benjamin’s arguments above, seem to have been attended to by the Labour
Relations Amendment Act 6 of 2014.77 Matlou78 is of the view that amendments to
the LRA accelerates the achievement of speedy and affordable resolution of disputes
since awards can now be enforced without too much complexities. Furthermore,
according to Matlou, amendments create legal certainty and restores confidence of
vulnerable employees hence achieving economic development, social justice and
labour peace.79 Moreover, in the matter between Mbs Transport v SATAWU,80
amendments to s 143 indicates that the legislature intended to provide a panacea to
the problems surrounding the enforcement of arbitration awards.81 In similar fashion,
s145 of the LRA has been adjusted with the intention of limiting facetious review
applications by employers at the expense of indigent employees. The Act has been
amended to provide the payment of 24 months security pending the review of a
matter.82 However, such amendments seem not to have succeeded in curtailing a
number of review cases lodged at Labour Courts.83
77 Vettori 2013 South African Mercantile Law Journal 251. See also s 143(1) of the LRA states that anarbitration award issued by a commissioner is final and binding and it may be enforced as if it were anorder of the Labour Court in respect of which a writ has been issued unless it is an advisory arbitrationaward. See also a matter between Mbs Transport v SATAWU (J1807/2015) [2015] ZALCJHB 461 para22 which stipulates that “‘Amendments to s 143 are intended to further streamline the mechanisms forenforcing arbitration awards of the commission and to make these mechanisms more effective andaccessible. Firstly, an award which has been certified by the Commission can be presented to theDeputy-Sheriff for execution if payment is not made. This removes the need for the current practice interms of which parties have a writ issued by the Labour Court. This has proved to be time-consumingand expensive, particularly for applicants in a centre where there is no Labour Court. Secondly, in thecase of award such as reinstatement which are enforced by contempt proceedings in the Labour Court,the need to have an arbitration award made an order of the Labour Court before contempt proceedingscan be commenced is removed. Finally, the enforcement of awards to pay money will occur in terms ofthe Rules and Tariffs applicable to the Magistrate’s Court, thus simplifying and reducing the costs ofthese proceedings. These amendments are anticipated to simplify and expedite the enforcement ofarbitration awards by the Commission and bargaining councils.”
78 Matlou 2016 South African Mercantile Law Journal 556.79 Ibid.80 Mbs Transport v SATAWU (J1807/2015) [2015] ZALCJHB 461 (hereinafter referred to as Mbs
Transport).81 Mbs Transport para 23. See also Steenkamp “The Labour Courts in 2014: The Position after the
Promulgation of the Superior Courts Act and in Light of the Amendments to Labour Legislation” 2014Industrial Law Journal 2685.
82 S 145 (7) of the LRA states that: “The institution of review proceedings does not suspend the operationof an arbitration award, unless the applicant furnishes security to the satisfaction of the Court inaccordance with subsection (8). (8) Unless the Labour Court directs otherwise, the security furnishedas contemplated in subsection (7) must in the case of an order of reinstatement or re-employment, beequivalent to 24 months remuneration; or In the case of an order of compensation, be equivalent to theamount of compensation awarded”.
83 Springveldt “Dispute Resolution under the Labour Relations Act: Practical Implications of theAmendments to Section 145 on the Furnishing of Security” 2017 Industrial Law Journal 63. Also seeMphahlele The Labour Relations Dispute Resolutions System: Is it Effective? (LLM-Thesis, UP, 2016)39.
12
On a similar note, Van Niekerk84 asserts that speedy social justice is the fundamental
value on which the statutory dispute resolution system is based and some delays in
the processing of labour disputes threaten to undermine statutory goals especially in
the Labour Courts. Van Niekerk alludes that in the Johannesburg Labour Court,
parties to 3 day trial and opposed reviews ready for set down are having to wait at
least 12 months before they are heard.85 Furthermore, Froneman J in Billiton
Aluminium v Khanyile,86 castigated the Labour Court for its failure to discharge its
statutory mandate of efficient and expeditious justice as he remarked that it is not the
process that causes delay but people themselves.87 Van Niekerk categorised the
people referred to by Froneman J as the Regulators, Functionaries and Users.88
Regulators are those who have a public duty to ensure that justice is delivered without
delay for example the Minister of Justice.89 Functionaries on the other hand are the
Courts themselves, which despite Case Management Systems (CMS), are failing to
file practice notes and delaying in enrolling matters for hearing.90 Furthermore, Users
are the parties or practitioners despite the narrow grounds for review, applicants
persist with short gun applications where the grounds for review are never clearly
articulated.91 In addition, more than 17000 disputes were referred to the CCMA in
2013.92 While it is a sign of an enhanced awareness of rights under the Constitution
and LRA, this can however suggests a failure of internal procedures to resolve
disputes.93 More so, such a huge number of referral suggests a dysfunctional
industrial relations system in the workplace where the CCMA has become the next
step in the company’s disciplinary procedure.94
In addition, when disputes without merit that should have never reached the stage of
set down for an arbitration are set down, creates an effect of delaying the processing
84 Van Niekerk 2015 Industrial Law Journal 837.85 Ibid.86 Billiton Alluminium SA Ltd t/a Hillside Alluminium v Khanyile (2010) 31 ILJ 273.87 (2010) 31 ILJ 273 para 34.88 Van Niekerk 2015 Industrial Law Journal 838.89 S 159 of the LRA requires that separate rules board for the Labour Court be appointed and the recent
amendment to that section requires the Judge President to convene a meeting of the rules at least onceevery two years. See also Van Niekerk 2015 Industrial Law Journal 839.
90 Woolwoths (Pty) Ltd v Commission for Conciliation Mediation and Arbitration (LAC) [2011] ZALAC 1591 Van Niekerk 2015 Industrial Law Journal 840.92 CCMA Annual Report 2013-2014.93 Van Niekerk 2015 Industrial Law Journal 843.94 Ibid.
13
of genuine disputes and commits scarce resources to fruitless ends.95 Most parties
refer their matters for review solely feel aggrieved rather than merits of their dispute.
So they become frustrated when they are told that their unhappiness with an arbitration
award is not a ground for review.96 Van Niekerk further argues that the system should
be blamed for creating misplaced expectations and for failing to afford a moment of
sober informed reflection.97 Education in a form of legal aid becomes an important
tool if available to those in need and in this sense it promotes access to justice.98 It
also promotes speedy justice in the sense that cases without merit are not permitted
to clog up the already overburden system.99
Speedy justice will not be achieved for so long as the process of litigation remains
solely driven by practitioners.100 Great responsibility for the expeditious hearing of a
dispute must be placed in the hands of Judges. Speedy social justice requires that
the statutory dispute resolution institutions like the CCMA and the Labour Court
recognise that they are part of an integrated process.101 This requires an ongoing
active and critical engagement between the CCMA and the Labour Court to ensure
that dispute resolution process are properly streamlined and that the statutory purpose
of the efficient, expeditious and inexpensive resolution of labour disputes is met.
Moreover, Vettori102 is critical of the manner in which labour dispute resolution is
conducted in South Africa. She argues that on mediation, the focus is on settlement
and this conflicts from court procedures where the centre of attention is on the
achievement of justice.103 It then stands to reason that if the parties are unwilling to
reach consensus, or when prospects of reaching finality are unlikely, mediation
becomes an inappropriate tool to deal with the dispute.104 Therefore mediation should
not be a default procedure, or a one-size-fits-all process because every matter has its
95 Ibid.96 Van Niekerk 2015 Industrial Law Journal 844.97 Ibid.98 Ibid.99 Van Niekerk 2015 Industrial Law Journal 845.100 Van Niekerk 2015 Industrial Law Journal 847.101 Ibid.102 Vettori “Mandatory Mediation: An Obstacle to Access to Justice?” 2015 African Human Rights Law
Journal 357.103 Ibid.104 Ibid.
14
own merits and the willingness of the parties is of supreme importance hence
mandatory mediation loses its essence.105
The CCMA as an institution which resolves employment disputes through conciliation,
mediation and arbitration and its duty to deliver is severely incapacitated by a wide
range of factors and the shortcomings in the legislative model.106 These factors
include, high number of review applications instituted in the labour court, lengthy
periods involved in the processing of those reviews and extremely time-consuming
processes that employees have to navigate in order to compel an unwilling employer
to make payments ordered in terms of an arbitration award.107 So the employers
buoyed by employees lack of resources, they deliberately refrain from complying with
the arbitration awards and this is fundamentally subversive of effective labour dispute
resolution.108
Another problem is the issue of equitable remedy. The crafters of the LRA intended
that employees who have been unfairly dismissed, to be reinstated thus giving back
an employee his primary reward, whereas compensation was intended to be an
uncommon remedy.109 It should however be noted that reinstatement is a fitting
recourse only if labour disputes are resolved quickly, which is regrettably not the case
in South Africa.110 This culminates in reinstatement as a first prize, not strictly
observed by the labour forums.111 Furthermore, the hostility resulting from labour
proceedings usually culminates in deterioration of workplace relationships, which
justifies unsuitability in reinstating or re-employing the employee in the workplace.112
Hardie AJ in Sibeko v Xstrata Coal South Africa,113 found that the commissioner in not
reinstating the applicant having found that his dismissal was substantively unfair, but
ordered for compensation instead, such finding was not a decision that a reasonable
decision maker could have come to.114
105 Queke “Mandatory Mediation: An Oxymoron? Examining the Feasibility of a Court-Mandated MediationProgramme” 2010 Cardozo Journal of Conflict Resolution 484.
106 Benjamin 2009 Industrial Law Journal 47.107 Van Zyl, Schlesinger and Brand CCMA Rules 2ed (2005) 233.108 Benjamin 2009 Industrial Law Journal 48.109 S 193 (2) of the LRA.110 Sidumo v Rustenburg Platinum Mines Ltd 2007 28 ILJ 2405 (CC) para 44.111 Kroukam v South Africa Airlink 2005 ILJ 2153 (LAC) para 116.112 Geldenhuys “The Reinstatement and Compensation Conundrum in South Africa Labour Law” 2016
Potchefstroom Electronic Law Journal 9.113 Sibeko v Xstrata Coal South Africa 2016 37 ILJ 1230 (LC) (hereinafter referred to as Sibeko).114 Sibeko para 26.
15
Furthermore, In terms of the LRA, all unfair labour practices must be referred to
conciliation or mediation before any forum can have jurisdiction to either arbitrate or
adjudicate a dispute.115 Collective labour disputes such as disputes regarding
freedom of association, organisational rights and collective agreements must all be
referred to conciliation or mediation before any forum can have jurisdiction to either
arbitrate or adjudicate the dispute.116 This was also emphasised in the case of Sambo
v Steytler Boerdery,117 the court referring to Intervale (Pty) Ltd v NUMSA118 stated:
“The Labour Appeal Court has made it clear that conciliation is a pre-requisite for thiscourt to entertain a dispute before it if it has not been conciliated, this court has nojurisdiction.”
More so, in the case of Caci Beauty Salon and Spa v Van Heerden,119 where the
employee referred an unfair labour dispute to the CCMA for conciliation and when the
dispute remained unresolved, the employee referred an unfair labour dispute for
arbitration at the CCMA. The Labour Court held that the CCMA lacked jurisdiction to
arbitrate because the dispute had not been referred to conciliation first in terms of s
191.120 Therefore under such circumstances, mandatory conciliation and mediation
can be described as an obstacle to access to justice. In the similar vein, the fact that
disputants are forced into pursuing a certain method of dispute resolution may
contribute to their unwillingness to co-operate and reach settlement.121
However, measuring the effectiveness of the ADR system in workplaces has been a
matter of controversy and debate.122 Disputes that are settled by parties themselves
or withdrawn are all classified as ‘settled’ hence this is potentially misleading and may
overstate the efficiency of conciliation process.123 The CCMA sets itself a target of
settling 70% of disputes referred to it and in 2011 to 2012. 124 This target was met
115 Vettori 2015 African Human Rights Law Journal 365.116 See sections 9, 16,21,22,24 and 33A of the LRA.117 Sambo v Steytler Boerdery (C592/13 [2014] ZALCCT 33 para 18.118 Intervale (Pty) Ltd v NUMSA 2014 ZALAC 10.119 Caci Beauty Salon and Spa v Van Heerden [2001] 7 BLLR 737 (LC).120 S 191 (1) (a) of the LRA “If there is a dispute about the fairness of a dismissal, or a dispute about an
unfair labour practice, the dismissed employee or the employee alleging the unfair labour practice mayrefer the dispute in writing to (i) a council, if the parties to the dispute fall within the registered scope ofthat council; or (ii) the Commission, if no council has jurisdiction”.
121 Wissler “The Effects of Mandatory Mediation: Empirical Research on the Experience of Small Claimsand Common Courts” 1997 Willamette Law Review 581.
122 Benjamin “Accessing South Africa’s Commission for Conciliation, Mediation and Arbitration (CCMA)”2013 International Labour Office 16.
123 Ibid.124 Ibid.
16
whilst in 2002 to 2003 settlement rate was low as 51%.125 More so, it is difficult to
determine whether a process such as mediation is effective or not, since it is
impossible to determine whether the presence of a third party has led to the settlement
of a dispute.126 It stands to reason that the success rate of mediation depends on the
negotiating experience of parties involved and mediation is less successful where the
conflict has reached the zenith of its intensity and where matters of principle are at
stake.127
In addition, Okharedia128 illustrates how CCMA has been helpful in reducing the
number of cases that would have been referred to the high courts, thereby establishing
justice timeously since justice delayed is justice denied. Benjamin also attempts to
measure conciliation process by alluding to the fact that employees may feel
pressured during conciliation to accept a financial settlement rather than seeking
reinstatement or re-employment.129 For this reason, the CCMA developed a ‘return to
work’ index to assess the extent to which settlements in unfair dismissals result in the
employee being reinstated or re-employed.130
However, Budd and Colvin131 argue that the objectives of labour relations are
Efficiency, Equity and Voice. Efficiency is defined as the successful and resourceful
production of economic affluence whereas, Equity entails equitable and just economic
advantage and the regulation of workplace policies, whilst, Voice is the platform for
employees to have significant contribution in managerial decisions either individually
or collectively.132 Therefore according to Budd and Colvin, an effective dispute
resolution system is the one that is resourceful in time and money, whilst systems that
are mediocre, are susceptible to prolonged resolution of disputes hence efforts of
preventing strikes from escalating becomes futile.133 In the same vein, Le Roux134
125 Ibid.126 Ferreira “The Commission for Conciliation, Mediation and Arbitration: Its Effectiveness in Dispute
Resolution in Labour Relations” 2004 Politeia 82.127 Ferreira 2004 Politeia 83.128 Okharedia op cit note 3, 22.129 Benjamin 2013 International Labour Office 17.130 CCMA 2014/2015 Annual Report available at
https://nationalgovernment.co.za/entity_annual/595/2015-commission-for-conciliation-mediation-and-arbitration-(ccma)-annual-report.pdf (accessed on 26-08-2018).
131 Budd and Colvin “Improved Metrics for Workplace Dispute Resolution Procedures: Efficiency, Equityand Voice” 2008 Journal of Economy and Society 462.
132 Ibid.133 Budd and Colvin 2008 Journal of Economy and Society 463.134 Le Roux 2014 Industrial Law Journal 37.
17
theorises that decency of work depends on the realization of four core values, namely,
the right to freedom of association, the opportunity to work, social protection and voice.
Van der Walt135 on the other hand, is of the view that workplace forums as dispute
preventive measures would have legislative acknowledgement to broaden worker
representation far off the curtailment of collective bargaining by affording workers with
an institutionalised voice in workplace decisions. He contends that the CCMA as the
institution created by the LRA of 1995 to facilitate the establishment of workplace
forums, one of the main function of these forums is to promote the interests of all
employees whether they are members of the trade unions or not and to advance
efficiency in the workplace.136 However, the fact that trade unions presently enjoy
significant power over workplace forums generates uncertainty about the true freedom
of these forums and real freedom is needful in order to encourage employee
engagement.137
Moreover, Botha138 argues that collective bargaining is more reactive than proactive
thus making it an apparatus to work out the terms and conditions of employment and
not a vehicle to smooth joint decision making. Whilst Budd, Gomez and Meltz139
basing on the pluralist theory stipulate that any organisation is made up of different
groups with different interests which they bring to the workplace thus theory accepts
that employees and employers have different objectives hence conflict is inevitable.
They go on to mention that in terms of radical theory, workers are in a state of
permanent disadvantage hence the need for trade unions to fight for the exploited
employees.140
Cyprus141 is of the view that governments should be responsible in preserving and
implementing a legislative framework that encourages collective bargaining based on
135 Van der Walt “Have Workplace Forums Contributed to Worker Participation? Some ManagementPerceptions” 2008 Institutional Research Repository of the University of Pretoria 45.
136 Du Toit “Corporatism and Collective Bargaining in a Democratic South Africa” 1995 Industrial LawJournal 792.
137 Van der Walt 2008 Institutional Research Repository of the University of Pretoria 48.138 Botha “In Search of Alternatives or Enhancements to Collective Bargaining in South Africa: Are
Workplace Forums a Viable Option?” 2015 Potchefstroom Electronic Law Journal 1813.139 Budd, Gomez and Meltz “Why Balance is the Best Pluralistic Industrial Relations Paradigm on
Balancing Competing Interests” available atwww.legacy.irc.csom.umn.edu/faculty/jbudd/research/buddgomezmeltz (accessed on 10-05-2016).
140 Ibid.141 Cyprus “Collective Dispute Resolution through Conciliation, Mediation and Arbitration: European and
International Labour Organisation Perspectives” 2007 International Labour Office 4.
18
true freedom of the parties and non-mandatory nature of negotiations for the purposes
of nourishing peaceful labour relations. He goes on to mention that the government
dispute resolution agency is another option which assists employers and employees
mature desirable labour relations by providing training services on matters like
managing discipline and grievances at work, avoiding discrimination and building
essential workplace communication.142
Khabo143 on the other hand, argues that tripartism play a major role in promoting
workplace democracy through the participation of social partners in decision making
process. Tripartite structures provide a forum for debate, reform or review of national
legislation, information sharing, acquisition of knowledge on prevailing labour laws,
and awareness of developments in the labour market which will ultimately filter through
to their respective constituencies and enhance observance of both international and
national laws.144
Whereas Le Roux, Orleyn and Rycroft145 elucidate the power and potential of
mediation, which is less confrontational and by directly involving parties themselves it
offers hope of a preserved employment. The strengths of mediation over litigation are
mentioned in that it results in a healing of the harassed person through empowerment
and recognition of the individual as well as transformation of a guilty employee.146
However, there is no common mediation statute regulating mediation procedure in
South Africa.147
Reuben148 argues that arbitrators do not have to make their decisions according to
rules of law which can make their awards appear arbitrary to those unfamiliar with the
industry practice upon which a decision may be based. He goes on to mention that
mediation is more democratic than arbitration and is independent of legal and
142 Ibid.143 Khabo “Collective Bargaining and Labour Dispute Resolution- Is SADC Meeting the Challenge?” 2008
International Labour Office 21. Tripatism refers to economic corporatism based on tripartite contractsof business, labour and state affiliations within the economy. Each is to act as a social partner to createeconomic policy through cooperation, consultation, negotiation and compromise.
144 Ibid.145 Le Roux, Orleyn, Rycroft Sexual Harassment in the Workplace: Law, Policies and Processes (2005)
62.146 Ibid.147 Brand 2011 Kluwer Law International 597.148 Reuben “Democracy and Dispute Resolution: Systems Design and the New Workplace” 2005 Harvard
Negotiation Law Review 43. See also Shilton “Labour Arbitration and Public Rights Claims: ForcingSquare Pegs into Round Holes” 2015-2016 Queen’s Law Journal 276-277.
19
workplace standards.149 While this may be appropriate, it can raise a practical
challenge in assessing the substantive fairness of a mediated settlement agreement,
particularly the one that falls short of the law.150 On the other hand, Bendeman151
mentions how the ADR system has been frustrated and how the informal proceedings
put into disrepute by the involvement of labour lawyers at arbitration stage. The idea
of keeping it simple and inquisitorial in the CCMA by virtue of their lack of legal training
is facing antagonism by the right to a fair trial which calls for legal representation.152
This can lead one to conclude that the ADR methods are reverting to an adversarial
system instead of an informal simple enquiry.153
1.8 Definition of Concepts
Due to the historical significance of the study, the following terms need to be defined.
1.8.1 The Meaning of Alternative Dispute Resolution
In this study, the term Alternative Dispute Resolution (ADR) refers to labour dispute
resolution by the Commission for Conciliation, Mediation and Arbitration (CCMA) and
Bargaining Councils. However, the term can refer to assisted settlement negotiations
in which disputants are recommended to negotiate with each other prior to litigation.154
It also refers to a lay down of expertise and practices directed at allowing the resolution
of legal disputes outside the courts.155 Dispute resolution outside courts is not
149 Reuben 2005 Harvard Negotiation Law Review 44.150 Reuben 2005 Harvard Negotiation Law Review 45.151 Bendeman 2006 African Journal on Conflict Resolution 143.152 Ibid.153 The constitutionality of the exclusion of legal representatives at the CCMA was considered in
Netherburn Engineering cc t/a Netherburn Ceramics v Modau NO (2009) 30 ILJ 269 (LAC). Theemployer in this case argued that the restriction on legal representation infringed the constitutional rightto equality, that the restriction was irrational and that it was in conflict with the right to fair administrativeaction. The full bench of the LAC rejected these arguments, finding that the restriction did not infringethe right to equality because arbitrations concerning matters, in respect of which legal representationswas allowed as of right, were distinguishable, because these matters were generally more complex.
154 Alternative Dispute Resolution https://www.usaid.gov/sites/default/files/documents/1868/200sbe.pdf1998 4 (accessed on 04-07-2016). See also Farris “The Procedural Flexibility of Arbitration as anAdjudicative Alternative Dispute Resolution Process” 2008 De Jure 504.
155 Okharedia op cit note 3, 2.
20
uncommon. Communities across the globe have a long history of using non-judicial
native means to resolve disputes, including disciplinary hearings.156 A Greek
philosopher Aristotle advocates for a settlement of a dispute by negotiation rather than
force.157 He prefers arbitration to litigation for an arbitrator goes by equity of a matter
whereas a judge goes by strict application of law.158
ADR processes comprise fact-finding, facilitation, conciliation, mediation, arbitration
and hybrid processes such as conciliation-arbitration (con-arb) by which a third party
facilitates resolution without resorting to formal adjudication.159 In the United States in
1970s, ADR was a social movement to resolve community disputes through mediation
and legal movement to address increased delay and expense in litigation arising from
congested court system.160 Therefore ADR can be interpreted as a means that
generate solutions to disputes that preferably meet the needs of disputants thereby
reducing reliance on the legal system and preserving disputants’ relationships.161
1.8.2 What is Labour Relations
Labour relations can be regarded as a collective relationship between the
management of an organisation and its employees or employee’s representatives.162
It also refers to the bond between employers and employees at the workplace, and
the political decisions and laws that affect it.163 Holtzhausen et al164 defines labour
relations as a tripartite relationship which is multifaceted and intricate in nature as it
deals with various interactions between employee, employers and state. These
interactions are said to be dynamic and occur within a particular social, economic and
political framework.165 A labour relationship is said to exist if there is labour and such
156 Steenkamp and Bosch 2012 Acta Juridica 120.157 Antoine “Keynote Address: The Moral Dimension of Employment Dispute Resolution” 2012 St John’s
Law Review 393.158 Ibid.159 Holtzhausen, Conradie, Bendeman, Dworzanowski, Venter and Levy Labour Relations in South Africa
4ed (2011) 424.160 Katz, Kochan and Colvin “The Negotiations Process and Structures” 2015 Cornell University ILR School
121.161 Budd and Colvin 2008 Journal of Economy and Society 460.162 www.collinsdictionary.com/dictionary/english/labour-relations (accessed on 04-070-2016)163 Ibid.164 Holtzhausen et al 5.165 Holtzhausen et al 6.
21
relationship is directly related to the labour or work being performed.166 The Wiehahn
Report commissioned in 1978 is greatly considered as the Magna Carta of the current
South African labour relations system, as it revolutionised discrepancies found in
previous labour relations.167 In United States, labour relations in public sector is
regulated by the Civil Service Reform Act of 1978 and in private sector, it is governed
by National Labour Relations Act.168 In South Africa, labour relations is regulated by
the LRA,169 Employment Equity Act170 and the Basic Conditions of Employment
Act.171
1.8.3 Nature, Scope and Causes of Workplace Disputes
In order to define the above terms comprehensively, the researcher starts by defining
a workplace and then explores the nature and scope of labour disputes. A workplace
can be defined in simple terms as an office, or industry where people are employed.172
In terms of s 213 of the LRA, a workplace is defined in terms of the public service and
in terms of a place where the employees of an employer work. This definition
specifically subsection (c) of s 213 of the LRA which contemplates the existence of
more than one workplace, has been castigated as being too wide and vague.173
Grogan174 alludes in the case of Ocgawu v Volkswagen of South Africa (Pty) Ltd175
where he mentioned that the commissioner in this case acknowledged that the term
workplace, could have different meanings other than the statutory definition. The
166 Bendix Industrial Relations in South Africa 4ed (2006) 4.167 Magna Carta is a charter granted by King John of England in 1215 which recognised the rights of
persons to certain basic liberties, privileges of the barons, church and freeman. See also Budeli,Manamela, Manamela, Tshoose, McGregor and Dekker Labour Law Rules (2012) 3.
168 National Labour Relations Act of 1935. Also see Mboh The Effectiveness of Dispute ResolutionMechanisms within the South African Labour Law System: A Critical Analysis (LLM-thesis, NWU, 2012)15.
169 LRA 66 of 1995.170 Employment Equity Act 55 of 1998 (hereinafter referred to as the EEA).171 Basic Conditions of Employment Act 75 of 1997 (hereinafter referred to as the BCEA).172 www.thefreedictionary.com/workplace (accessed on 04-07-2016).173 Kruger and Tshoose “The Impact of the Labour Relations Act on Minority Trade Unions: A South African
Perspective” 2013 Potchefstroom Electronic Law Journal 297. See also Benjamin and Cooper 2016Swiss Programme for Research on Global Issues for Development 18.
174 Grogan Collective Labour Law (2007) 333. See also Benjamin and Cooper 2016 Swiss Programme forResearch on Global Issues for Development 19.
175 Ocgawu v Volkswagen of South Africa (Pty) Ltd 2002 23 ILJ 220 (CCMA).
22
commissioner added that if the term is used in chapter three of the LRA is to be given
the statutory definition, this would lead to insurmountable absurdities.176
However, the term dispute, is not clearly defined in the LRA177, except that it is an
alleged dispute.178 According to Landis and Grossett179, a dispute is a condition in
which parties to an alleged dispute have competing interests and have also reached
a deadlock. Bendix180 defines a labour dispute as a continued disagreement between
employers and employees or their unions as regards to any matter of common interest,
or any factor affecting the employment relationship. However, a dispute must not be
trivial, and an internal settlement procedure must have been utilised prior to referral of
a dispute to designated dispute resolution forum.181
Furthermore, the simple rising of a demand or grievance does not imply the existence
of a dispute because it only arises if no final agreement on a demand or if a grievance
is settled or about to be settled in an unsatisfactory procedure.182 Within the nature
and context of labour disputes, there are two types of disputes namely disputes of right
and disputes of interest. At this point, it is important to state that there are two main
classifications of labour disputes, namely individual and collective disputes. A dispute
is termed individual if it involves a single employee or a number of workers in their
individual capacities or in relation to their individual contracts of employment.183
Conversely, a dispute is collective if it involves a number of workers collectively.184
In addition, there are several causes that trigger workplace disputes, to mention a few
are matters of mutual interest by employees. If employees for instance, demand a
wage increment or express dissatisfaction with an increment offer, a grievance exists.
More so, if parties do not agree during negotiations, a dispute is then declared and
176 Kruger and Tshoose 2013 Potchefstroom Electronic Law Journal 297.177 Bosch et al 5.178 S 213 of the LRA.179 Landis and Grossett Employment and the law: A Practical Guide for the Workplace 3ed (2014) 394.180 Bendix Industrial Relations in South Africa 5ed (2010) 611.181 Landis and Grossett 394. Also see s 135 of the LRA where conciliation of disputes must be resolved
within 30 days, however parties may agree to the extension of a 30 day period. A commissioner mustissue a certificate stating whether or not a dispute has been resolved. Also In terms of s 136, if acommissioner has issued a certificate stating that issues has remained unresolved, within 90 days, adispute should be resolved at arbitration. However, on good cause, a commissioner may condone aparty’s non-observance of that timeframe.
182 Bendix 611. A party can object to the establishment of a disciplinary hearing if the platform is notconducive to a fair hearing and by doing such a dispute arises.
183 Madhuku “The Alternative Labour Dispute Resolution System in Zimbabwe: Some ComparativePerspectives” 2012 University of Botswana Law Journal 9.
184 Ibid.
23
therefore needs resolution.185 Additionally, during a disciplinary hearing, if an
employee is unhappy with the sanction or feels that the procedure was unfair due to
the fact that he was not afforded legal representation, a dispute is likely to erupt as he
can refer the matter to the Labour Court to interdict the disciplinary hearing or
approach dispute resolution institutions.186
Generally, unresolved grievances are a common source of these disputes, because
disgruntled employees lodge grievances at their workplaces through available
platforms and if these internal structures fail to produce desired outcomes, disputes
are then declared against the employers.187 Likewise, a dispute is vastly regarded as
a formalized manifestation of conflict, with regards to workplace related matters, which
includes failure to resolve a grievance, for instance an unfair labour practices.188
1.8.4 Dispute Types
1.8.4.1 Disputes of Right
Disputes of right occur when there is an infringement of a bona fide entitlement or
obligation as set out in employment contracts, collective agreements and legislation
governing employment relationship.189 Madhuku190 describes a dispute of right as an
alleged vindication of an existing legal right or standard. An example of dispute of
right would be if an employee wants to take his 21 consecutive annual leave days and
the employer is only willing to grant him 10.191 Section 65 (1) (c)192 excludes the right
to strike where the issue in dispute is the one to be referred to arbitration or Labour
Court. It is however not easy to distinguish between disputes of right and disputes of
interest especially where industrial action is impending.193 In the case of Gaylard v
185 Holtzhausen et al 138.186 Zondo v Uthukela District Municipality (2015) 36 ILJ 502 (LC) see also Jiba v Minister: Department of
Justice and Constitutional Development (2010) 31 ILJ 112 (LC). And Golding v HCI Managerial Services(Pty) Ltd (2015) 36 ILJ 1098 (LC).
187 Bendix 613.188 Ibid.189 Holtzhausen et al 422.190 Madhuku 2012 University of Botswana Law Journal 9.191 S 20 of the BCEA 75 of 1997 regulates these employment rights.192 LRA 66 of 1995. See also Du Toit and Ronnie “The Necessary Evolution of Strike Law” in Le Roux and
Rycroft (eds) Reinventing Labour Law: Reflecting on the First 15 Years of the Labour Relations Act andFuture Challenges (2012) 207.
193 Du Toit and Ronnie 216. See also Bosch et al 6.
24
Telkom South Africa Ltd194, the court endorsed the decision of Schoeman195 and
decided that if benefits in terms of s 186 (2) (a) of the LRA relating to unfair labour
practice, were to be interpreted to include remuneration, then this would diminish strike
action with regard to issues of remuneration.196
It should however be borne in mind that unfair labour practices are referred to
arbitration or the Labour Court. However, Ebrahim197 argues that a claim to new forms
of remuneration constitutes a matter of mutual interest which is subject to collective
bargaining and would thus falls outside the scope of arbitration. It was further
emphasised in Gaylard198 that the distinction between disputes of interest and disputes
of right is key, as a failure to do so, would result in disputes channelled to the wrong
forum hence undermining the envisioned dispute resolution process.199
1.8.4.2 Disputes of Interest
Disputes of interest occur when a party to the employment agreement feels that he
should be, but is not yet, entitled to something.200 Disputes of interest is different from
dispute of right in that in disputes of interest, issues are bargained over and are not
regulated by any law or agreement.201 Differently put, interest disputes include the
formation of new rights or the adjustment of existing rights.202 Therefore disputes of
interest include failure to agree on new wage levels, new conditions of work, poor
194 Gaylard v Telkom South Africa Ltd 1998 9 BLLR 942 LC (hereinafter referred to as Gaylard).195 Schoeman v Samsung Electronics SA Pty Ltd [1997] 10 BLLR 1364(LC).196 Gaylard para 22.197 Ebrahim “Revisiting the Distinction between Unfair Labour Practice Relating to Benefits: Apollo Tyres
South Africa Pty Limited v CCMA (DA1/11) [2013] ZALAC 3” 2014 Potchefstroom Electronic LawJournal 12. See also Ebrahim “The Interpretation to be Accorded to the Term Benefits in Section 186(2)(a) of the LRA Continues: Apollo Tyres South Africa (Pty) Limited v CCMA (DA1/11) [2013] ZALAC 3”2014 Potchefstroom Electronic Law Journal 596.
198 1998 9 BLLR 942 LC.199 Ebrahim 2014 Potchefstroom Electronic Law Journal 11. See also Fourie “What Constitutes a Benefit
by Virtue of Section 186(2) of the Labour Relations Act 66 of 1995? Apollo Tyres South Africa (Pty) Ltdv CCMA 2013 5 BLLR 434 (LAC)” 2015 Potchefstroom Electronic Law Journal 3303.
200 Holtzhausen et al 422.201 Ibid. See also Fourie 2015 Potchefstroom Electronic Law Journal 3305.202 National Union of Metalworkers of SA v Fry's Metals (Pty) Ltd 2001 ILJ 701 (LC) para 25.
25
treatment and the like.203 These are the ones which, if not properly bargained, during
negotiations, can lead to destructive strikes.204
In the same breadth, the state does not get involved in compelling resolution of such
interest issues by compelling bargaining, or any specific outcome of bargaining,
instead, the LRA created structures within which parties must engage with each other,
and potentially use industrial action to compel agreement with another bargaining
party.205 However, Coetzee and Beerman argue that the term mutual interest is often
mistakenly used to refer to only interest issues, but it includes both interest and rights
issues.206 Furthermore, although the term mutual interest is not defined by the LRA,
in De Beers,207 it was held that the term can mean any issue concerning
employment.208 In addition, there is no absolute distinction between disputes of right
and disputes of interest in the LRA and workers may strike over interest disputes even
if the nature of dispute falls within terms of statutory provision providing for
arbitration.209
The researcher believes there should be clarity and a line of demarcation over
disputes of right and those of interest. This is so because one of the purposes of the
LRA is to encourage orderly collective bargaining to determine wages, terms and
conditions of employment and other matters of interest. If there is a transparent
demarcation of disputes, there will be a clear recourse available to employees in
matters of interest, which are subject to collective bargaining whilst rights disputes are
subject to arbitration.210 Newaj and Van Eck211 are however of the view that interest
disputes differ from right disputes, which concern a legal claim under an employment
contract, a collective agreement, a statute or even the common law where a dispute
arise as a result of breach of a pre-existing right.
203 Bendix 611.204 The horror of Marikana strike was as a result of poor negotiations and effective dispute resolution.205 Coetzee and Beerman “Can an Employer Still Raise the Retrenchment Flag in Interest Negotiations-
The Fry Metals Case under the Labour Relations Amendment Bill 2012” 2012 De Jure 349.206 Ibid.207 De Beers Consolidated Mines v CCMA 2000 5 BLLR 578 (LC) (hereinafter referred to as De Beers).208 De Beers para 16.209 Bosch et al 6.210 Newaj and Van Eck “Automatically Unfair and Operational Requirement Dismissals: Making Sense of
the 2014 Amendments” 2016 Potchefstroom Electronic Law Journal 6.211 Ibid.
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1.9 Research Methodology
This study is a desktop research and is based on secondary sources which are; the
Constitution of the Republic of South Africa, relevant labour legislations passed by
parliament, cases, together with international and regional conventions ratified by the
government. In addition, scholarly journals, books and papers. These sources are
used to identify gaps and loopholes in the current labour dispute resolution system.
Furthermore, the labour dispute resolution process of South Africa requires to be
viewed within its historical and social political context since colonial legacy had
produced racial imbalance in labour relations especially where most employers were
whites and the majority of workers were blacks. Therefore the nature of this research
is not only legal but also historical.
1.10 Limitations to the Study
Although there are four main bodies of ADR in South Africa, namely, the Arbitration of
South Africa (AFSA), the Association of Arbitrators (AOA), CCMA and the Africa
Alternative Dispute Resolution (AADR),212 concentration is put on ADR under the
auspices of the CCMA which deals with labour disputes. Although Bargaining
Councils play a similar role, much focus in this study is put on labour dispute resolution
by the CCMA. More so, on dispute prevention mechanisms, only the workplace forum
as envisaged by the LRA is to be examined. In the same breadth, selected pieces of
sections of the LRA are to be referred to, for the purposes of this study. Lastly,
boundaries have been put in terms of choice of aims and objectives, research
questions and selected methodology.
212 www.nortonrosefullbright.com/files/south-africa-25761.pdf (accessed on 21-02-2016).
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1.11 Chapter Outline
Chapter One is an introduction of this study where background information,
research problems, aims and objectives, literature review and research
methodology are discussed.
Chapter Two examines the historical genesis of labour relations and ADR in
South Africa. It further analyses how current labour dispute resolution is
distinguished from that of pre-1994. Furthermore, with the advent of
constitutional democracy, examination on legal and institutional framework on
dispute prevention and labour dispute resolution in South Africa is also
conducted.
Chapter Three is the discussion of the international instruments and standards,
to assess if South Africa is responding to those instruments which it is party to.
This chapter will also refer to the labour dispute resolution of the United
Kingdom to see if South Africa can learn from it.
Chapter Four examines whether Labour dispute resolution process under the
auspices of the LRA. This chapter simply discusses the dispute processes and
evaluates the effectiveness of current South African dispute resolution
mechanisms through case law.
Chapter Five provides an analysis of the grounds for review of the CCMA
arbitration awards. In this chapter, scrutiny on the Labour Relations
Amendment Act 6 of 2014 is conducted to assess if the desired informality and
expeditiousness in resolving disputes, has been achieved by such
amendments.
Chapter Six is about findings and conclusions made in this study. It is in this
chapter where recommendations are made, to improve the current labour
dispute resolution mechanisms.
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CHAPTER TWO
2. HISTORICAL PERSPECTIVES OF LABOUR RELATIONS AND LABOURDISPUTE RESOLUTION IN THE REPUBLIC OF SOUTH AFRICA
2.1 Introduction
Chapter one consists of the research introduction and background. Chapter two
presents a historical overview of pieces of legislation with specific reference to dispute
resolution provisions. A historical scrutiny is an integral part to this study because it
is the history that stands as a barometer to measure legislative progress and
development of the labour relations in South Africa. The economic and social
suppression of blacks before and during apartheid era, created monstrous inequalities
in the employment field.213 It is this colonial legacy that created a racial imbalance
especially where most employers were whites and the majority of workers were
blacks.214 Institutions accountable for dispute resolution lacked legitimacy and validity
due to the influence of apartheid on the labour relations system.215 Procedures were
cumbersome and major issues were sometimes lost in legal technicalities leading to
high incidences of strikes and lockouts.216 Another major shortcoming was found in
prolonged delays in attaining relief, superfluous formalism in the drawing up of cases,
lavish dependence on the use of lawyers and resultant expenses have characterised
the operation of the Industrial Court.217 This begs a question of whether the new
Labour Relations Act,218 succeeded in moving industrial relations away from
213 Twyman “Finding Justice in South African Labour Law: The Use of Arbitration to Evaluate AffirmativeAction” 2001 Case Western Reserve Journal of International Law 308. Furthermore, the researcheruses terms like Black, White and African merely for the purposes of differentiation.
214 Du Toit “Protection against Unfair Discrimination: Cleaning up the Act?” 2014 Industrial Law Journal2623. Also see Christie and Madhuku “In a Review of the Industrial Dispute Resolution Procedures ofSouthern Africa” available at https://library.fes.de/fulltext/bueros/Botswana/00539005.htm (accessedon 01/07/2016).
215 Ferreira 2004 Politeia 73.216 Bendeman 2007 African Journal on Conflict Resolution 161.217 O’Regan “The Development of Private Labour Arbitration in South Africa-A Review of Arbitration
Awards” 1989 Industrial Law Journal 559. See also Thompson “Dispute Prevention and Resolution inPublic Services Labour Relations: Good Policy and Practice” 2010 International Labour Office 1.
218 LRA 66 of 1995.
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adversarialism that characterised previous Acts.219 Therefore, for a better
understanding of the current development of labour relation mechanisms, a historical
perspective is mapped into three phases namely, pre 1924 to 1948, 1949 to 1994 and
the post 1994 era.
2.2 Historical Development
2.2.1 Period from pre 1924 to the Implementation of Apartheid Policy in 1948
South Africa promulgated the first statute namely, the Industrial Disputes Prevention
Act220 designed to regulate labour in general. Under this legislation, employers were
compelled to give one month’s notice of any changes to conditions of employment and
if an employee objects to such proposed changes, a conciliation and investigation
board could be appointed if the matter affected ten or more employees.221 No
industrial action was legitimate unless conciliation and investigating board had
reported on the dispute and until the moratorium on unilateral action has terminated.222
This Act further excluded its application to employers who employed public servants
and less than ten employees.223 However, under this Industrial Disputes Prevention
Act, it must be noted that this Act at least provided ways of negotiating disputes
through the establishment of conciliation and investigation boards. Furthermore, the
conciliatory bodies of 1909 can be compared to the bodies created under the Labour
Relations Act of 1995 in terms of the purpose of their existence and attempting to
resolve disputes of interests.224
219 Previous Acts such as the Labour Relations Act 28 of 1956, Industrial Conciliation Act 11 of 1924, etc.220 Act 20 of 1909. See also Holtzhausen et al 36.221 S 5 (2) and s 25 of Act 20 of 1909. Investigation of the matter and feedback were to take place within a
month. If a dispute did not affect ten or more employees it was not worth conciliation and investigation.The Board’s findings were not binding rather simply advisory.
222 S 6 (1) Act 20 of 1909. A moratorium is an embargo or a freeze of any activity.223 Sections 1 and 2 of Act 20 of 1909.224 Grogan 83.
30
The South African Union of 1910, adopted a constitution which only dealt with white
interests and excluded the rights and liberties of black South Africans.225 In 1911, the
Mines and Works Act226 was passed as a result of the skilled white miners demand,
and it advocated for the exclusion of all black workers from all skilled and semi-skilled
jobs in the mines.227 There is no doubt that this Act perpetuated discriminatory policies
against blacks as it further required black African workers to possess competency
certificates in order to occupy skilled positions within the mines.228 However, these
competency certificates were not made available to Non-Europeans in Free State and
Transvaal provinces.229 The idea was to exploit and subjugate the black race by
ensuring that they undertake degrading jobs.230
In addition, the Native Labour Regulations Act231 passed in 1911, prohibited strikes by
black workers, and they were placed under firm control and criminal sanctions for
breach of employment contracts.232 In the case of R v Smit,233 the court held that a
strike is a sign of refusing to continue with work, which also constitutes a breach of
contract on the part of the employee. This gave employers leverage to cancel the
employment contract and dismiss the employee without prior notice.234 Therefore,
following from the Native Labour Regulations Act as well as case law, if black
employees embarked upon strike action it would be regarded as a breach of
employment contract and could warrant dismissal without a right of recourse.235 This
225 The Union of South Africa was the joining of the British colonies of the Natal and Cape, together withBoer Republics of the Transvaal and Orange Free State.
226 Act 12 of 1911.227 Dollery “Labour Apartheid in South Africa: A Rent Seeking Approach to Discriminatory Legislation” 1990
Australian Economic Papers 118. See also Budeli “Worker’s Right to Freedom of Association and TradeUnionism in South Africa: A Historical Perspective” 2009 Fundamina 60.
228 Cruise “The Gender and Racial Transformation of Mining Engineering in South Africa” 2011 The Journalof the South African Institute of Mining and Metallurgy 217.
229 Regulation 99 of Mines and Works Act 12 of 1911.230 Bhorat, Naidoo and Yu “Trade Unions in an Emerging Economy: The Case of South Africa.” 2014
Development Policy Research Unit 3.231 Act 15 of 1911.232 Finnemore and Van Rensburg 23.233 R v Smit 1995 (1) SA 239 (C) 98.234 Jordaan and Ukpere “South African Industrial Conciliation Act of 1924 and Current Affirmative Action:
An Analysis of Labour Economic History” 2011 African Journal of Business Management 1100.235 Conradie “The Constitutional Right to Fair Labour Practices: A Consideration of the Influence and
Continued Importance of the Historical Regulation of (UN) Fair Labour Practices Pre-1977” 2016Fundamina 175. See also Budeli 2009 Fundamina 58. And also Lesha The Effectiveness of SouthAfrican Legislation in Dealing with Mass Industrial Action Before and After the Promulgation of theConstitution Act 108 of 1996 (LLM-thesis, UKZN, 2016) 17.
31
shows that black employees lacked a crucial element in dispute resolution, as they
could not use strike action as a weapon to threaten employers.236
In response to discriminatory laws, the South African Native National Congress
(SANNC) embarked on a violent campaign against the 1910 constitution and further
protested against job reservation for whites and coloureds only.237 In 1918 and early
1919, black mine workers launched into a strike for higher pay and the abolition of a
colour bar.238 To restore order, the government responded to this unrest by passing
the Natives Urban Areas Act239 which further tightened the control on black labour.240
Even though the SANNC gained support of native blacks, its impact was to no avail
and it proved futile as segregation policies continued.241
Although the initial statute in South Africa to comprehensively create mechanisms for
dispute resolution was the Industrial Conciliation Act of 1924.242 The 1922 industrial
action which ended after 70 days where 200 people died and approximately 534
seriously injured, demonstrated a critical point of South Africa’s labour relations.243
This Act shunned black workers and was established predominantly to resolve interest
disputes which emerged out of failure in collective bargaining.244 These disputes of
interest were referred to industrial councils or conciliation boards for conciliation whilst
disputes of right referred to ordinary industrial courts.245 White employees gained
immensely from the Act of 1924 since black workers were denied access to collective
bargaining and settlement of disputes.246
Furthermore, the Wage Act of 1925247 was passed, and unlike the Conciliation Act, it
was applicable to black workers.248 When consensus was not reached, the Wage Act
236 Ibid.237 Southall “The African Middle Class in South Africa 1910-1994” 2014 Economic Research Southern
Africa 8. See also Budeli 2009 Fundamina 61.238 Ibid.239 Act 21 of 1923.240 Finnemore and Van Rensburg 24. See also Budeli 2009 Fundamina 61.241 Finnemore Introduction to Labour Relations in South Africa 8ed (2002) 19.242 Bhorat, Pauw and Mncube “Understanding the Efficiency and Effectiveness of the Dispute Resolution
System in South Africa: An Analysis of CCMA Data 2009 Development Policy Research Unit 2.243 Finnemore 158. Also see Koorapetse A Comparison of the Botswana and South African Labour Dispute
Resolution Systems (MA-thesis, NMMU, 2011) 37.244 Budeli et al 3.245 Ibid.246 Jordaan and Ukpere 2011 African Journal of Business Management 1098.247 Act 27 of 1925.248 S 1 of Act 27 of 1925.
32
provided for a unilateral decision regarding disputes of interests.249 It is remarkable to
note that the Wage Act did not bear precise designation of wages based on race, but
the Wage Board responsible for daily costs of workers, navigated and manipulated the
provisions in order to benefit white workers.250 However, in 1930, the Industrial
Conciliation Act251 was amended and the provisions enabled the Minister of Labour to
pass resolutions of black workers who were excluded from the definition of an
employee.252
Due to frequent strikes and labour unrest, in 1934, a commission of enquiry was
instituted to examine the Industrial Conciliation Act of 1930.253 This particular Act was
then amended and the Industrial Conciliation Act of 1937 was promulgated to provide
a more effective framework for labour dispute resolution to curtail strike action by
workers.254 However, such development was to no avail as in 1935, Natal experienced
violent strikes throughout the state.255 The Rand insurrection was also prominent on
the land during this period.256 Therefore as a result of labour unrest, by the time the
country approached 1948 elections, the South African Party headed by General Smuts
had lost popularity on the land.257
2.2.2 Period from Apartheid to 1994
In order to suppress blacks gaining momentum in the labour market, the National Party
in 1948 appointed the Botha Commission to explore existing labour legislation.258 As
a consequence, the Native Labour Settlement of Disputes Act 48 of 1953 was
promulgated to prevent settlement of disputes affecting black employees.259
249 Finnemore and Van Rensburg 26.250 Ex parte Minister of Justice: in re R v Gerstnera 1930 AD 420 at 431 where the court held that the
intention of the legislature was to furnish an employee with a minimum wage proportionate toqualifications.
251 Act 24 of 1930.252 Budeli 2009 Fundamina 7.253 Nattrass and Seekings “Citizenship and Welfare in South Africa: Deracialisation and Inequality in a
Labour-Surplus Economy” 1997 Canadian Journal of African Studies 452. See also Bhorat et al 2014Development Policy Research Unit 3.
254 Ringrose The Law on Practice of Employment (1983) 8.255 Ringrose 8.256 Southall 2014 Economic Research Southern Africa 2.257 Lacey Working for Boko: The Origins of a Coercive Labour System in South Africa (1981) 98.258 Bendix 68.259 This Act was also known as the Bantu Labour Settlement of Disputes Act of 1953.
33
Therefore this legislative exclusion and discrimination ensured that native workers
remained economically disadvantaged and at the base of employment pyramid.260
Furthermore, the Black Labour Relations Regulation Act261 applied to all blacks except
for domestic workers employed in the farms and those working for the government.262
According to this legislation, a native labour officer had to report a particular dispute
to the regional committee concerned and to the inspector who will attempt to settle a
labour dispute.263 Failing which the dispute could then be referred to the central native
labour board in partnership with such officer and such inspector to further attempt to
settle the dispute.264 The rationale behind such committees was to enhance
communication between native employees and their employers.265
In addition, the screws of job reservation were tightened in the mining industry, and
elasticity extended to accommodate the manufacturing and commerce industries,
advocating the recruitment of white workers.266 Again in 1956, the Industrial
Conciliation Act was amended with the paramount aim of extending and concentrating
racial segregation within the workplace.267 Furthermore, it is worth mentioning that no
racially mixed unions could be registered, unless the number of members who were
not white, was too small to make a separate trade union viable.268 For the prevailing
racially mixed unions, they were required to establish two separate branches namely
one for whites, and the other for coloured and Indians, and hold separate branch
meetings, where only white members could sit on union’s executive committee.269
The Industrial Conciliation Act of 1956 specifically excluded black workers from its
definition of an employee.270 Therefore, the Industrial Conciliation Act of 1956
provided another mechanism for magnifying apartheid policies by enforcing stringent
260 Twyman 2001 Case Western Reserve Journal of International Law 308.261 Act 48 of 1953.262 Bendix 76.263 Finnemore 157.264 Ibid.265 Bendix 77.266 Van der Berg and Bhorat “The Present as a Legacy of the Past: The Labour Market, Inequality and
Poverty in South Africa” 1999 DPRU Working Paper 21. See also Rospabé “Making Racial WageRelations Fair in South Africa: A Focus on the Role of Trade Unions” 2001 DPRU Working Paper 48.
267 Bhorat et al 2014 Development Policy Research Unit 3.268 Ibid. Also see O’Regan “1979-1997: Reflecting on 18 Years of Labour Law in South Africa” 1997
Industrial Law Journal 889.269 Godfrey, Maree, Du Toit and Theron Collective Bargaining in South Africa: Past, Present and Future?
(2010) 134.270 S 1 of Act 28 of 1956.
34
control on black trade union movements.271 It is imperative to note that the legislature
prohibited industrial action by black workers and excluded them from the system of
collective bargaining.272 Furthermore, in 1960s, no white employee could be replaced
by a black employee, and no white employee could work under a black employee.273
With increased inflation rate but incessant low wages, more chronic strikes by African
employees emerged on wage demands in the early 1970s.274 As a consequence, in
1973, the Settlement of Disputes Act provided for joint communication committees of
employers and African employees, together with the racially divided committees.275
There was a notable repentance and realization that the job reservation policies, trade
union registrations, and collective bargaining systems, which demonstrated a
remarkable degree of biasness towards white employees, were precipitating a
noteworthy economic and social fragility in the land.276
Due to increasing discontent, the 1973 wildcat strikes, and suppression of Africans at
workplace, the Wiehahn Commission was appointed in 1977 to revisit the country’s
labour laws.277 The recommendations that were reached by the Wiehahn Commission
were that race should stop to be a criterion or standard for the recognition of trade
unions by government.278 The Commission's essential recommendations for labour
reform were that all workers be entitled to the right to freedom of association
irrespective of their race or sex.279 Trade unions were able to freely decide on their
own, the terms and employers were now prohibited to dismiss an employee as a result
of participating in union activities, as this would constitute an unfair labour practice.280
These recommendations were accepted and consequently, the Industrial Conciliation
Act of 1956 was amended and renamed the Labour Relations Act (LRA) of 1956 where
the exclusions of native Africans was removed.281 African workers for the first time in
271 This was achieved by the banning of multi-racial unions from being registered and required existingmulti-racial unions to divide into unions according to their race. See also Bhorat et al 2014 DevelopmentPolicy Research Unit 3.
272 Godfrey et al 133.273 Bhorat et al 2014 Development Policy Research Unit 4.274 Ibid.275 Ibid.276 Ibid.277 O’Regan 1997 Industrial Law Journal 891. See also Bendix 77.278 Du Toit et al 7.279 Budeli “Employment Equity and Affirmative Action in South Africa: A Review of the Jurisprudence of the
Courts since 1994” 2016 African Journal of Democracy and Governance 78.280 Holtzhausen et al 44.281 Budeli 2016 African Journal of Democracy and Governance 81. See also Bendix 80.
35
labour history were included in the definition of an employee although workers still
remained categorised and segregated.282
The 1956 LRA provided for the establishment of industrial councils which performed
quasi-judicial functions by attempting to forestall employment disputes between
parties to the labour relationship through negotiation processes.283 Furthermore, the
1956 LRA created the Industrial Court, the Labour Appeal Court as well as the
Appellate Division to deal with unfair labour practices.284 The LRA prescribed a
process for collective bargaining however, did not explicitly mention that striking
employees could not be dismissed, so this culminated in a number of unfair dismissal
cases.285 However, the LRA provided for a mediator where industrial council or
conciliation boards have reached a deadlock regarding the dispute.286 The mediator
was to use his own persuasive techniques to bring about an agreement through acting
as a chairman.287 The Act also provided for voluntary and compulsory arbitration, and
this process took place when an industrial council or conciliation board could not reach
an agreement and parties did not intend engaging in strike action or lock-out.288 The
decision of an arbitrator was binding and final on the parties and strike action whilst
awaiting an award was deemed unlawful.289
The Industrial Court played a significant role within the dispute resolution system as it
promoted parties to engage in negotiations through conciliation, which is the initial
process stipulated by the LRA to resolve labour disputes rather than engaging in
industrial action.290 The Industrial Court was able to hear appeals thereby classified
as a quasi-judicial body that undertook an advisory role.291 More so, in 1961, South
Africa adopted the Republic of South Africa Constitution,292 together with the Electoral
Laws Consolidation Act,293 which perpetuated segregation mercilessly by promoting
political and social rights for whites only. During this period, government sought to
282 Ibid.283 Swanepoel Introduction to Labour Law 2ed (1986) 25.284 S 17(c) of the LRA 28 of 1956.285 Grogan Workplace Law 6ed (2001) 9.286 Vettori “The Role of Human Dignity in the Assessment of Fair Compensation for Unfair Dismissals.”
2012 Potchefstroom Electronic Law Journal 105.287 S 44 of the LRA 28 of 1956.288 S 45 of the LRA 28 of 1956.289 S 46 of the LRA 28 of 1956.290 United African Motor and Allied Workers Union v Fodens (SA) (Pty) Ltd (1983) 4 ILJ 212 (IC).291 Ibid.292 The Constitution of South Africa Act 32 of 1961.293 Act 46 of 1946.
36
place a more stringent hold on blacks which resulted in the enactment of the Black
Authorities Act,294 the Black Labour Act295 and the Promotion of Black Self-
Government Act.296
These discriminatory acts were strongly opposed by the international community and
the member states of the United Nations were compelled to end all military and
economic relations with South Africa.297 Due to South Africa’s apartheid policies, it
was obliged to withdraw as a member from the International Labour Organisation in
1966.298 This isolation, however, did not deter South Africa from oppressing black
workers as it promulgated the Bantu Labour Regulation Act.299 This Act endorsed the
process of negotiation in settling conflicts and disputes between employees and their
employers as well as creating labour committees.300 However, the Bantu Labour
Regulation Act challenged the formation of black trade union movement and did not
allow black trade unions to enter into negotiations regarding wages and employment
conditions.301 Therefore by prohibiting black workers in negotiating wages and
conditions of employment, the Act submerged black employees into the dictates and
whims of their employers.
The 1956 LRA still did not apply to farm workers, civil servants and educators which
means there was no homogenous legislative framework for policing labour relations in
South Africa at this time.302 Furthermore, there was a chaotic nature of collective
bargaining, ineffective conciliation machinery, expensive dispute resolution system
and failure to comply with international labour standards.303 These problems led the
294 Act 58 of 1951295 Act 67 of 1964296 Act 46 of 1959297 United Nations General Assembly passed Resolution 1761 of 1962 which criticised South Africa’s
practices of apartheid. See also Dugard “International Law and the South African Constitution” 1997European Journal of International Law 77. And also Mubangizi “Some Reflections on Two Decades ofHuman Rights Protection in South Africa: Lessons and Challenges” 2014 African Journal ofInternational and Comparative Law 512.
298 Memorandum concerning the withdrawal of the Republic of South Africa from membership of theInternational Labour Organisation, submitted by the South African Congress of Trade Unionsavailable at http://www.historicalpapers.wits.ac.za/inventories/inv_pdfo/AD1137/AD1137-Ef8-1-4-001-jpeg.pdf (accessed on 31/03/2017). See also Prevost “South Africa as an Illustration of theDevelopment of International Human Rights Law” 1999 South African Yearbook of International Law213.
299 Act 70 of 1973 which replaced the Black Labour Settlement of Disputes Act 48 of 1953.300 Swanepoel 27. Also see Lesha (LLM-thesis, UKZN, 2016) 30.301 Dollery 1990 Australian Economic Papers 117.302 Botha and Mischke 1997 Journal of African Law 135.303 Ibid.
37
government to appoint a Ministerial Task Team to draft a new legislation as it identified
the old process as too complex and over-technical contributing to further disputes.304
The array of labour laws with different provisions covering different groupings of
employees led to a constitutional challenge that the state was not treating its
employees equally.305
Similarly, the Labour Relations Amendment Act (LRAA) of 1988, did not provide a
distinction between disputes of rights and disputes of interest.306 It can be argued that
this lack of clarity culminated in inconsistency of labour law principles and ultimately
positioned the black employees as underdogs. Moreover, it resulted in an
overwhelming case load for the Industrial Court as it was now tasked with a dual
responsibility to act as arbitrator and judicial officer.307 As the researcher alluded to in
the previous chapter, dispute of rights do not operate the same as disputes of interest.
It is evident that in terms of interest disputes, parties engage in collective bargaining.
However, disputes of rights have to be referred to the Industrial Court for determination
where a conciliation board has been unsuccessful in settling the disputes.308
Furthermore, the industrial court resolved interest disputes which should have been
taken through negotiation and compromise at industrial level between parties.
However, the industrial court attempted to make a final judgment that would create a
win-lose situation for the parties.309
Therefore since the industrial courts handled matters which ought to have been
decided through arbitration, investigation and consultation with both parties, it
overloaded itself with unresolved matters thus creating a huge backlog. In addition,
these courts did not have staff members possessing required skills and expertise, to
deal with labour disputes.310 Moreover, the court’s procedures were too technical,
thus making it difficult for lay people to access.311 Furthermore, Industrial Court
applied contradictory and unreasonable principles of fairness due to the LRAA of
1988’s failure to properly define terms and mechanisms for dispute resolution.312
304 Rycroft 1996 South African Human Rights Yearbook 146.305 Rycroft 1996 South African Human Rights Yearbook 141.306 Finnemore Introduction to Labour Relations in South Africa 6ed (1998) 35.307 BTR Dunlop Ltd v National Union of Metalworkers of South Africa (1989) 10 ILJ 701 (IC).308 Food and Allied Workers Union v Clover Dairies (1986) 7 ILJ 697 (IC).309 Steenkamp and Bosch 2012 Acta Juridica 121.310 Ibid.311 Ibid.312 Finnemore 37.
38
Therefore, by not distinguishing disputes of right and those of interest, parties would
be unaware of the appropriate channel to follow. This undoubtedly opened floodgates
of abuse as employers could intentionally pursue a matter under the banner of the
dispute of right, to ensure that strike action would not be a recourse available to
aggrieved employees.313 In a nut shell, poor drafting of the LRAA of 1988, led the
Industrial Court to assume unlimited jurisdiction in terms of any order it deemed fit to
end a dispute.
2.2.3 The Post 1994 Period
The advent of the new born political dispensation in 1994 announced the coming of a
new labour era.314 Labour relations in a democratised society now faced the
challenges of redressing the injustices of the past by harmonising the employment
relationship to attain peace at workplace, which would eventually lead to greater
productivity.315 More so, Labour relations and labour policies changed significantly
from those that prevailed under auspices of the previous government since the African
National Congress (ANC) came into power with the assistance of the Congress of
South African Trade Unions (COSATU) and the South African Communist Party.316
The abuse of trade unions under the previous government led to the entrenchment of
labour rights in the constitution.317 When the new Labour Relations Act 66 of 1995
came into force on 11 November 1996, it applied to all workers except those in South
Africa Defence Force, National Intelligence Agency and the South Africa Secret
Service.318
313 Metal and Electrical Workers Union of SA v National Panasonic Co (1999) 12 ILJ 533 (C).314 Jordaan and Ukpere 2011 African Journal of Business Management 1100. See also Kruger and
Tshoose 2013 Potchefstroom Electronic Law Journal 285. And also Murray “The Human RightsCommission et al: What is the Role of South Africa’s Chapter 9 Institutions?” 2006 PotchefstroomElectronic Law Journal 122.
315 Ferreira “Developments in Labour Relations in South Africa: Ten Years of Democracy 1994-2004.” 2005Politeia 199.
316 Kruger and Tshoose 2013 Potchefstroom Electronic Law Journal 285. See also Jordaan and Ukpere2011 African Journal of Business Management 1100.
317 Tshoose “Determining the Threshold for Organisational Rights: The Legal Quagmire Facing MinorityUnions Resolved-South African Post Office v Commissioner Nowosenetz No (2013) 2 BLLR 216 (LC)”2013 Obiter 610. See also s 23 of the 1996 Constitution.
318 Rycroft 1996 South African Human Rights Yearbook 141.
39
One of the salient aims of the LRA is to create a quick, efficient and affordable dispute
resolution as the Act states that:
“To change the law governing labour relations to provide simple procedures for theresolution of labour disputes through conciliation, mediation and arbitration for whichthe CCMA is established and through independent alternative dispute resolutionservices accredited for that purpose” 319
The LRA defines the purpose of the Act as being the effective resolution of labour
disputes.320 Fairness rather than lawfulness became the new standard in South Africa
industrial relations trying to fashion legislation that allows competitive advantage and
workplace equity.321 The new institution of the bargaining council replaced the
industrial councils of previous Acts.322 In addition, the 1995 LRA simplified the
procedures as trade unions refer the dispute to the CCMA, and if remain unsettled,
give the employer 48 hour notice of the impending strike.323 Therefore the new labour
system was introduced by the LRA of 1995 which brought all employees under the
single legislation and the labour court which replaced the industrial court and was
relieved of the previous burden imposed on the court system.324 It is worth mentioning
that this transformation was based on the desire to create a harmonious labour
relationship which is based on justice and equity.325
Despite the era of a new LRA of 1995, Benjamin expounded the shortcomings
particularly in the enforcement of arbitration awards, as employers used to relax and
see if employees had patience and resources to process the awards through review,
certification and execution in order to enforce them.326 He alludes that employers use
the institute of reviews as a strategic foot-dragging to delay enforcement of arbitration
awards.327 He goes on to mention that it takes about 23 months from the date of the
arbitration award for the labour court to hear a review application and 3 months for
judgment to be given and further delays emanating from the fact that there are 3 levels
319 Preamble to the LRA.320 S 1 (d) of the LRA.321 Rycroft 1996 South African Human Rights Yearbook 153.322 Botha and Mischke 1997 Journal of African Law 136.323 Ibid.324 Finnemore 39.325 Jordaan and Ukpere 2011 African Journal of Business Management 1101.326 Benjamin 2009 Industrial Law Journal 40.327 Benjamin 2009 Industrial Law Journal 41.
40
of appeal available against labour court decisions.328 Therefore this shows that
reviews are used to thwart the enforcement of awards.
Furthermore, Benjamin elucidates that employees who receive arbitration awards in
their favour are required to have them certified to obtain payment, of which certification
takes place on an average of seven months after the award is granted.329 Therefore
employers can wait to see before having payed compensation in terms of awards and
employees will be unable to manoeuvre through all procedural channels that are
required to enforce an award.330 He goes on to mention that even if an award has
been certified, the employee is still required to have a writ issued by the labour court
before the award can be executed by the sheriff of the court.331 Also the issue of
affordability and accessibility comes into question when a poor employee is required
to put security to cover costs when he wishes to have the sheriff attach employer’s
assets to obtain compensation.332 Therefore this requirement undermines the
capacity of the CCMA to provide employees with access to expeditious and cheap
justice.333
However, in an attempt to curb a hazardous deficiency in the LRA of 1995, the Labour
Relations Amendment Act334 made some amendments. There is no doubt that s145
of the LRA has been amended with the intent to limit frivolous review by employers
who review matters to allow the matter to die at Labour Court due to an employee’s
lack of funding and other factors. The LRA has been amended to provide for 24
months security being paid by an employer pending the review of a matter where
reinstatement has been awarded.335 Where compensation has been granted, an
amount equal to such compensation would need to be paid. However, such
328 Ibid.329 Benjamin 2009 Industrial Law Journal 44.330 Ibid.331 Ibid.332 Benjamin 2009 Industrial Law Journal 45.333 Buthelezi 2012 De Rebus 34.334 Labour Relations Amendment Act 6 of 2014.335 S 145 (7) of the LRA states that: The institution of review proceedings does not suspend the
operation of an arbitration award, unless the applicant furnishes security to the satisfaction of theCourt in accordance with subsection (8).(8) Unless the Labour Court directs otherwise, the security furnished as contemplated insubsection (7) must-In the case of an order of reinstatement or re-employment, be equivalent to 24 monthsremuneration;orIn the case of an order of compensation, be equivalent to the amount of compensation awarded.
41
amendments tend to limit or infringe on the constitutional right of access to courts
especially for Small Medium Enterprises (SMEs) as this additional cost seems to be
burdensome. In the same fashion, this raises debates about the constitutionality of
the provision as employers may find the deposit too punishing to proceed with the
review. The challenge is further worsened by the fact that an indigent employee may
not have any money available to furnish as security for a review and this likewise raises
questions of accessibility.336
2.3 The Structure of Labour Dispute Settlement Bodies.
2.3.1 The Commission for Conciliation, Mediation and Arbitration (CCMA).
The Commission for Conciliation Mediation and Arbitration (CCMA) was established
in terms of sections 112-126 of the LRA.337 It plays a pivotal role in the new dispute
resolution system, as all disputes not dealt with in terms of agreed and private
resolution systems must be referred to the commission for conciliation.338 Its functions
include dispute resolution, dispute management and institution building and training
within the labour arena.339 It also regulates the performance of dispute resolution
functions by Bargaining Councils and Private Agencies.340 The rationale for the
creation of the CCMA as a dispute settlement body is prompted by critique of the
adjudication of unfair dismissal cases in the period after the establishment of the South
African Industrial Court.341 Benjamin delineates the establishment of this institution as
follows:
“A major change introduced by the draft Bill concerns adjudicative structures. In theabsence of private agreements, a system of compulsory arbitration is introduced for
336 Springveldt 2017 Industrial Law Journal 63.337 Benjamin “Beyond Dispute Resolution: The Evolving Role of the Commission for Conciliation, Mediation
and Arbitration” 2014 Industrial Law Journal 1.338 Quansah “A New Labour Dispensation for South Africa” 1997 Journal of African Law 139. See also
Pretorius “Making You Whistle: The Labour Appeal Court's Approach to Reviews of CCMA ArbitrationAwards” 2000 Industrial Law Journal 1514.
339 Ibid.340 Bendix 135. Also see Benjamin and Cooper 2016 Swiss Programme for Research on Global Issues for
Development 7.341 Benjamin “Friend or Foe: The Impact of Judicial Decisions on the Operation of the CCMA” 2007
Industrial Law Journal 3.
42
the determination of disputes concerning dismissal for misconduct and incapacity. Byproviding for the determination of dismissal disputes by final and binding arbitration,the draft Bill adopts a simple, quick, cheap and non-legalistic approach to theadjudication of unfair dismissal. The main objective of the revised system is to achievereinstatement as the primary remedy. This objective is based on the desire not onlyto protect the rights of the individual worker, but to achieve the objects of industrialpeace and reduce exorbitant costs. It is premised on the assumption that unless acredible, legitimate alternative process is provided for determining unfair dismissaldisputes, workers will resort to industrial action in response to dismissal. In order forthis alternative process to be credible and legitimate and to achieve the purposes ofthe legislation, it must be cheap, accessible, quick and informal. These are thecharacteristics of arbitration, whose benefits over court adjudication have been shownin a number of international studies.”342
The high rate of referral of dismissal cases to the old Industrial Court was one of the
factors that influenced the drafting committee to propose an arbitration system for the
most common categories of unfair dismissal cases.343 The initial explanatory
memorandum noted that the Industrial Court did not have the resources to handle
thousands of dismissal cases referred to it annually hence the creation of the
CCMA.344 However, the CCMA referral rate is also significantly higher, placing also a
great strain on its resources.345 It is undisputed that the success of the CCMA reflects
the success of the entire LRA in terms of efficacy and speedy resolution of disputes.346
The Explanatory Memorandum Explanatory Memorandum of 1995 accompanying the
LRA describes the CCMA’s main function as the attempt to resolve disputes by
conciliation so as to reduce the incidence of industrial action and litigation.347 The
CCMA was set as a juristic person, divorced from the state, political parties, trade
unions and employer’s organisations.348 It is however not absolute that this body is
free from any government intervention because of the state’s paramount role in the
enactment of laws and their enforcement.349 The main objective of the CCMA is to
provide for an effective, simple, expeditious and cost-effective dispute resolution
342 Ibid. In addition, s 138 (1) of the LRA: “A commissioner may conduct an arbitration in a manner that thecommissioner considers appropriate in order to determine the dispute fairly and quickly and must dealwith the substantial merits of the dispute with the minimum of legal formalities”.
343 Benjamin 2007 Industrial Law Journal 4.344 Ibid.345 Ibid.346 Quansah 1997 Journal of African Law 139.347 Benjamin and Cooper 2016 Swiss Programme for Research on Global Issues for Development 8.348 S 112 of the LRA states that the Commission for Conciliation, Mediation and Arbitration is hereby
established as a juristic person.349 Bosch et al 22. Also see Lubisi Labour Dispute Resolution by Bargaining Councils and the Commission
for Conciliation, Mediation and Arbitration: A Legal Analysis (LLM-thesis, UFH, 2005) 134.
43
facility to the labour relations community.350 It was preconceived that as many
disputes as possible will be settled through conciliation culminating in a minority of
disputes referred to arbitration or the labour court.351
Another objective of the CCMA is to assist in the evolution of South Africa labour
relations by encouraging effective strategies for dispute prevention.352 The CCMA
may also accredit private agencies or bargaining councils to perform any or all of its
functions.353 In the case of National Bargaining Council for the Road Freight Industry
v Meyer t/a Oakley Carriers,354 it was stated that the CCMA is not a court of law but
a tribunal with wide range of investigative and diverse functions. There is however
debate as to whether the functions performed by CCMA Commissioners constitute an
administrative action during the course of arbitration proceedings or quasi-judicial
functions.355 The researcher engages comprehensively into this debate in chapter 5.
Furthermore, the CCMA has jurisdiction in all nine provinces and maintains a
provincial office and as many local offices as necessary in each province.356 A dispute
should be referred to the provincial office within the same jurisdiction it arose.
However, CCMA’s powers are not only confined to addressing disputes referred to it,
it may in public interest, offer to conciliate disputes that have not been referred to it.357
In addition, the CCMA may upon request advice a party of the procedures to follow,
provide advice with regard to establishing bargaining institutions, disciplinary and
dismissal procedures.358 Furthermore, if no accredited with jurisdiction available, the
CCMA will conciliate and arbitrate disputes regarding alleged unfair dismissal based
on incapacity and misconduct, dismissal of probationary employees, dismissal where
the reason for dismissal is unknown, constructive dismissals and unfair labour
practices.359
350 Hepple “Is South African Labour Law Fit for the Global Economy” in Le Roux and Rycroft (eds)Reinventing Labour Law: Reflecting on the First 15 Years of the Labour Relations Act and FutureChallenges (2012) 14.
351 Bendeman 2006 African Journal on Conflict Resolution 92.352 Ibid.353 S115 of LRA.354 National Bargaining Council for the Road Freight Industry v Meyer t/a Oakley Carriers (2000) 21 ILJ
1391 (LC).355 Bosch et al 21.356 S 114(3) of the LRA.357 S 115(2) (c) of the LRA.358 Bosch et al 22.359 Bosch et al 23.
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2.3.2 The Bargaining Councils
Sectoral bargaining councils are established in terms of sections 27-34 of the LRA of
1995. They perform collective bargaining and dispute resolution functions in certain
economic sectors covering a million workers.360 The endorsement of trade union
rights within the Constitution,361 as well as the LRA,362 essentially provided for stronger
protection of the rights of employees.363 A trade union can be described as the in-
between body that bridges the gap between an employer and an employee.364
Essentially the role of a trade union is to safeguard the existing rights of its members
and also improve and enhance these rights.365 All employees are entitled to join and
participate in trade union activities.366 The fundamental function of a trade union is to
engage in the process of collective bargaining with employers on behalf of their
members as well as providing representation in disciplinary proceedings.367 The role
of trade unions is further elucidated in Amalgamated Engineering v Minister of
Labour,368 where the court mentioned that a trade union concerned should act as the
spokesman of its members whenever a dispute arises between employers and
employees.369 Therefore, trade unions are essential to the furtherance of concepts of
equality and democracy in the workplace as they promote the interests of employees
by ensuring that employees are placed in an equal position to their employers.370
In order for a trade union to operate at its optimum effectiveness it has to be an
independent body. The independence of a trade union is vital as it ensures that it
operates as a body that is free from any bias or undue influence. The best interests
of employees can only be appropriately obtained if a union can acquire the trust,
360 Benjamin and Cooper 2016 Swiss Programme for Research on Global Issues for Development 6.361 S 23(2) of the Constitution of 1996.362 S 65 of the LRA 66 of 1995.363 Botes “The History of Labour Hire in Namibia: A Lesson for South Africa” 2013 Potchefstroom Electronic
Law Journal 525.364 Sundar “Trade Unions and Civil Society: Issues and Strategies” 2007 Indian Journal of Industrial
Relations 713. See also Grawitzky “Collective Bargaining in Times of Crisis: A Case Study of SouthAfrica” 2011 International Labour Office 1.
365 Sundar 2007 Indian Journal of Industrial Relations 714.366 Grogan Collective Labour Law (2010) 34.367 Grogan 35.368 Amalgamated Engineering v Minister of Labour 1949 (4) SA 908 (A).369 Ibid at 912.370 Finnemore and Van Rensburg 139.
45
cooperation and dependence of its members. This will only come about if members
are convinced that their representatives will always act on their behalf without
prejudicing their interests. The LRA attempts to assist in acquiring the trust of
members by ensuring that a trade union does not undertake its duties for its own
benefit.371 Therefore the LRA seeks to regulate the constitutions of trade unions so
as to ensure that they engage in ethical and fair practices.372
The function of collective bargaining is to ensure that parties come to an understanding
about the issue and that the dispute will not necessitate industrial action or lock-outs
to reach a resolution.373 This would benefit both the employer and the employee in
that the employer would save on production time lost and the employee would not
forfeit the right to be paid. Collective bargaining has many objectives, however, the
main objective is the conclusion of collective agreements pertaining to conditions of
employment as well as matters relating to the mutual interest of both an employer and
an employee.374 A collective agreement is then reached between a trade union and
the employer, which would stipulate the conceded conditions of employment or other
matters pertaining to the mutual interest of employees and employers.375
In Ceramic Industries Ltd t/a Betta Sanitay Ware v NCBAWU,376 the court stated that
the objectives of the LRA must be interpreted in conformity with international law and
the Constitution.377 It must be understood that the Constitution was enacted to redress
the injustices of the past not only within society but also within the field of labour. It is
for this reason that the LRA has the dual function of inculcating transformation in the
workplace as well as in society at large. In Foodgro (A division of Leisurenet Ltd) v
Keil,378 the Labour Appeal Court acknowledged that unjust laws that govern society
negatively impact on labour relations.379 In addition, labour peace essentially entails
the elimination of strife which takes the form of strikes and lock-outs. By engaging in
collective bargaining, parties would be able to resolve disputes amicably and speedily
371 Adigun “The Implications of Social Democracy on Industrial Relations in Nigeria” 2014 Journal ofEmerging Trends in Economics and Management Sciences 29.
372 S 95(5) (a) - (w) of the LRA.373 Macsteel (Pty) Ltd v NUMSA (1990) 11 ILJ 995 (LAC).374 Brand, Lotter, Steadman and Ngcukaitobi Labour Dispute Resolution 2ed (2008) 31.375 S 213 of LRA.376 Ceramic Industries Ltd t/a Betta Sanitary Ware v NCBAWU [1997] 6 BLLR 697 (LAC).377 Ibid para 70.378 Foodgro (A division of Leisurenet Ltd) v Keil [1999] 9 BLLR 875 (LAC).379 Desai and Habib “Labour Relations in Transition: The Rise of Corporatism in South Africa’s Automobile
Industry” 1997 The Journal of Modern African Studies 495.
46
rather than resorting to strikes and lock-outs.380 This in turn would result in a decrease
of work days lost and greater productivity.381 Furthermore, instilling equality in the
workplace ensures that all employees are treated the same, therefore, employees
would be able to work in an environment that is free from animosity, hence the morale
of the workplace is significantly improved.382
One of the objectives that the LRA seeks to promote is successful dispute resolution
which is achieved through collective bargaining aimed at enhancing co-operative
decision making between employers and employees.383 It does this through the
establishment of workplace forums and consultation with the employee.384
Furthermore, it has established a simple process for dispute resolution that has been
enforced through conciliation and arbitration and through the use of independent
bodies designed to resolve disputes.385 The objectives of the LRA essentially signify
that this legislation is deemed to be the foundation of dispute resolution. This was
manifest in NAPTOSA v Minister of Education, Western Cape,386 where the court held
that an employee is compelled to first seek resolution under the procedure prescribed
by the LRA. If, however, no remedy is found through the LRA’s dispute resolution
process then the LRA could potentially be held liable for not providing sufficient
protection to rights enshrined in the constitution.387 The court sought to highlight
through case law that the objectives of the LRA are a pertinent characteristic of the
legislation itself. The LRA not only entrenches successful bargaining as a primary
objective in an attempt to prevent industrial strife, but it also provides a comprehensive
framework for resolving disputes.388
The court’s enforcement of the LRA’s dispute resolution framework is further illustrated
in Mackay v ABSA Group and another,389 where the court stated that,
380 Pep Stores (Pty) Ltd v Laka No (1998) 19 ILJ 1534 (LC).381 Daemane “Human Resources Management and Trade Unions Compatibility: Soft-Hard Model
Digestion for Human Capacity Building and Sustainable Productivity at Workplace” 2014 Journal ofEmerging Trends in Economics and Management Sciences 122.
382 Harvey “Labour brokers and workers’ rights: Can they co-exist in South Africa?” 2011 South AfricanLaw Journal 104.
383 Ferreira “Collective Bargaining and the Public Sector” 2008 Journal of Public Administration 194.384 Bendix 341.385 Bendix 622.386 NAPTOSA v Minister of Education, Western Cape (2001) 22 ILJ 889 (C).387 Ibid at 896.388 Molusi “The Constitutional Duty to Engage in Collective Bargaining” 2010 Obiter 161.389 Mackay v ABSA Group [1999] 12 BLLR 1317 (LC).
47
“All disputes arising from the employer-employee relationship must be effectivelyresolved. Such disputes are resolved through conciliation, arbitration and adjudication,and those of a collective nature through collective bargaining. It is clear that it couldnever have been intended that some disputes arising out of the employer-employeerelationship are incapable of resolution in terms of the Act.”390
The court envisioned that the Labour dispute resolution framework is deemed effective
in protecting the rights of employees.391 Furthermore, the protection of employees’
rights is enforced through the process of collective bargaining within the dispute
resolution system.392 In the same breadth, in National Police Services Union & others
v National Negotiating Forum,393 the court pointed out that the LRA does not place any
duty on either the employer or the employee to engage in the bargaining process. The
courts are not given authority to determine or influence the result of the bargaining
process. The outcome of such negotiations is entirely dependent on the parties
themselves.394 This ruling essentially portrays that both parties to the bargaining
process must be given equal power which instils democracy within labour relations.395
Industrial democracy seeks to undo the unilateral power that existed with employers
over their employees which has been enforced through legislation for centuries.
2.3.3 The Private Agencies
The LRA grants recognition and recommends private dispute resolution to meet the
greater demand for unbiased third party intervention as an alternative to statutory
conciliation, arbitration and adjudication.396 Private agencies may perform dispute
resolution functions with or without accreditation as they will be conducted in terms of
the Arbitration Act 42 of 1965. The awards granted in private arbitration are binding,
although they can be reviewable if arbitrator exceeds his powers.397 Agencies such
as the Independent Mediation Service of South Africa Arbitration (IMSSA) formed in
390 Ibid para 15.391 Ibid.392 Brand et al 30.393 National Police Services Union v National Negotiating Forum (1999) 20 ILJ 1081 (LC).394 (1999) 20 ILJ 1081 (LC) para 52.395 Du Toit “Industrial Democracy in South Africa’s Transition” 1997 Law, Democracy and Development
42.396 Holtzhausen et al 427.397 Bendeman 2007 African Journal on Conflict Resolution 141. See also s 33 of Arbitration Act 42 of 1965.
48
1984 and later closed down in 2000 was the first labour dispute resolution agency.398
The IMSSA was replaced by the Mediation Service of South Africa (AMSSA) and in
2002, the AMSSA was incorporated into the Tokiso Dispute Settlement (Tokiso) which
afford parties who can afford it, to elect an arbitrator or mediator of their preference.399
Private dispute resolution is largely obtainable for sizeable organisations where there
is a collective agreement specifying that a private resolution body such as Tokiso can
be of use.400 Therefore these private bodies are quick and they take place at the
convenience of the parties although they are not easily accessible by those who are
economically infant.401
2.3.4 The Labour Court
The LRA created the Labour Court as a specialist court with national jurisdiction,
established to resolve, through a process of adjudication, labour law disputes.402 It
has been afforded same status as a division of the High Court of South Africa and has
exclusive jurisdiction over cases concerning dismissals for operational requirements,
strike dismissals and other cases in which the dismissal is alleged to involve
discrimination.403 Under the previous LRA of 1956, labour disputes were heard by the
Industrial Court and there was a right to appeal from Industrial Court to Labour Appeal
Court, and from Labour Appeal Court to the Supreme Court of Appeal.404 However,
the new LRA of 1995 wiped out the Industrial Court and created a flexible alternative
dispute resolution on one hand and the Labour Court on the other to deal with complex
matters.405 Furthermore, as a result of the Constitution Seventeenth Amendment
398 Bosch et al 4.399 Bhorat et al 2009 Development Policy Research Unit 7. See also Bosch et al 20.400 Ibid.401 Ibid.402 Benjamin “Accessing South Africa’s Commission for Conciliation, Mediation and Arbitration (CCMA)”
2013 International Labour Office 6. See also Rossouw et al 121. It is referred to as a specialist Courtbecause it hears exclusively labour law matters and it is staffed by judges who have expertise in labourlaw.
403 Holtzhausen et al 435. See also Benjamin 2013 International Labour Office 6.404 Rossouw et al 121. The Industrial Court was a court of first instance and it essentially operated as a
quasi-judicial tribunal, rather than a court of law. It had a concurrent jurisdiction with the Supreme Courtwhen it comes to interdicting illegal strikes and lockouts while ordinary civil courts had exclusivejurisdiction over common law matters arising out of contracts of employment.
405 Holtzhausen et al 437. Also in terms of s 157 of the LRA, a confusing overlap between the jurisdictionsof civil courts and labour courts no longer exist. The Labour Court now enjoys exclusive jurisdiction overa wide range of matters arising from the LRA.
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Act,406 there is no longer need to appeal to the Supreme Court of Appeal because the
Labour Appeal Court has been afforded the same status with the Supreme Court of
Appeal.407
The Labour Court has various functions, however its primary function is to review
arbitration awards, and to adjudicate disputes over which it has exclusive
jurisdiction.408 The court is also empowered to grant urgent interim relief, interdicts,
specific performance, declaratory orders, compensation, damages, costs and any
other appropriate relief.409 If it is determined that a matter before the Labour Court
should have been referred to arbitration, then the Court may stay the proceedings and
refer to arbitration or act as an arbitrator, with the consent of the parties to the
dispute.410 Therefore a party wishing to refer a dispute to the Labour Court must do
so within the prescribed period.411 Likewise, a late referral must be accompanied by
an application for condonation and the Labour Court has the discretion to condone
late referral on good cause shown.412
2.3.5 The Labour Appeal Court
The Labour Appeal Court is a superior court afforded same status, authority and
inherent powers as the Supreme Court of Appeal.413 It is established as a court of law
and equity, being the final court of appeal in respect of all judgements and orders
made by the Labour Court.414 In terms of s 172,415 the Labour Appeal Court has
jurisdiction in all provinces of the Republic with its seat in Johannesburg, although
406 The Constitution Seventeenth Amendment Act of 2012.407 In the recent case of National Union of Public Service and Allied Workers obo Mani v National Lotteries
Board 2014 (3) SA 544 (CC), the court held that as a result of the Constitution Seventeenth AmendmentAct of 2012, this right of appeal to the Supreme Court of Appeal no longer exist. The court went on tosay that s 168(3)(a) of the Constitution now reads: “The Supreme Court of Appeal may decide appealsin any matters arising from the High Court of South Africa or a court of a status similar to the High Courtof South Africa, except in respect of labour or competition matters to such extent as may be determinedby an Act of Parliament”
408 Holtzhausen et al 435. See also Rossouw et al 124. And Benjamin 2013 International Labour Office 7.409 S 158 of the LRA.410 Benjamin and Cooper 2016 Swiss Programme for Research on Global Issues for Development 9.411 S 191 of the LRA.412 Rossouw et al 127.413 S 167(3) of the LRA.414 S 167(2) of the LRA.415 S 172 of the LRA.
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when appropriate, appeals will be heard in Cape Town, Durban and Port Elizabeth.416
On hearing an appeal, the Labour Appeal Court may confirm or set aside the rulings
of the Labour Court, or request further evidence or remit the case to the Labour Court
for further hearing.417 Unlike in the Labour Court, matters before the Labour Appeal
Court are heard by three judges whom the Judge President designates,418 and the
President has the power to direct a matter before the Labour Court be heard directly
by the Labour Appeal Court.419 In 2013, the Superior Courts Act read together with
the Constitution Seventeenth Amendment Act reinstated the Labour Appeal Court as
the court of final instance in labour matters as originally provided, except in respect of
the Constitutional Court which is now the apex court in all matters.420
2.4 Dispute Prevention Mechanisms
2.4.1 Workplace Forums
Dispute resolution and dispute prevention can be regarded as two sides of the same
coin. For a system to have an effective resolution there must be dispute preventive
measures in place. The introduction of workplace forums in South Africa is viewed as
an integral vehicle for cooperative engagement between labour and management over
matters related to efficiency and flexibility in production.421 There was minor emphasis
on dispute prevention in the previous years because the major focus was on dispute
resolution.422 It was envisaged that the LRA would require employees to share
information with their employers and to promote an effective dialogue and joint making
decisions over specific matters.423 There is a powerful argument that workplace
participation in decision-making is associated with empowerment and human
416 Brand et al 56. See also Bosch et al 25.417 Ibid.418 Brand et al 55.419 S 175 of the LRA. See also Brand et al 56. This power is intended to be used in urgent and crucial
cases.420 Benjamin and Cooper 2016 Swiss Programme for Research on Global Issues for Development 9.421 Steadman “Workplace Forums in South Africa: A Critical Analysis” 2004 Industrial Law Journal 1170.422 Bendeman 2007 African Journal on Conflict Resolution 144.423 Steadman 2004 Industrial Law Journal 1173.
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development.424 Du Plessis and Fouche425 argue that the rationale behind workplace
forums is to avoid adversarial labour relations by way of consultation and decision
making. Du Toit426 on the other hand, advances that although workplace participation
is key, it does not entail balance of power between an employer and employees.
However, Matlou427 mantains that an employee’s desire is to be heard and taken
seriously.
The reason for considering workplace forums in LRA derive from the desire in 1994 to
democratise relationships in the workplace such that the employer may not unilaterally
implement matters of joint decision making as this will lead to disputes erupting.428
Further, s 80 (1) and (2) legitimise the establishment of these forums as it stipulates
that:
“A workplace forum may be established in any workplace in which an employeremploys more than 100 employees and any representative trade union may apply tothe Commission in the prescribed form for the establishment of a workplace forum.”
The Act explicitly sought to enhance less adversarial industrial relations and South
Africa inspired by Sweden and German experiences, forums became not just a
mechanism for promoting cooperation, but an arena for contestation between
essentially antagonistic agendas.429 In addition, the employees who on account of
their non-unionism and who believed that they were excluded from collective
bargaining, welcomed the forum as a way of airing out their grievances such as pay.430
Therefore, these forums are basically designed to promote internal communication
between employers and employees who traditionally have been hostile to each
other.431 It is hoped that this will promote a more peaceful labour relationship and
consequently, an improved productivity and efficiency.432 Furthermore, the idea of
workplace forum is one that ensures that the constitutional right to bargain collectively,
is effectively recognised.433
424 Matlou 2016 South African Mercantile Law Journal 557.425 Du Plessis and Fouche A Practical Guide to Labour Law 7ed (2012) 242.426 Du Toit 1997 Law, Democracy and Development 43.427 Matlou 2016 South African Mercantile Law Journal 558.428 Bendix 340. See also Botha 2015 Potchefstroom Electronic Law Journal 1816.429 Wood and Mahabir “South Africa’s Workplace Forum System: A Stillborn Experiment in the
Democratisation of Work?” 2001 Industrial Relations Journal 233.430 Wood and Mahabir 2001 Industrial Relations Journal 234.431 Botha 2015 Potchefstroom Electronic Law Journal 1817.432 Bendix 340.433 Kruger and Tshoose 2013 Potchefstroom Electronic Law Journal 314.
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However the downside of this concept is that workplace forums have failed pitifully in
South Africa and in practice very few forums were established.434 Trade unions could
not apply for the establishment of the forum if it believed that such a move would
duplicate or dilute its existing activities.435 Since the LRA encourages training of each
member workplace forum, trade union officials lamented that the lack of training of
employee representatives has limited the effectiveness of the forum.436 More so,
South Africa workplace forums differ from the Germans as German Councils can be
formed in any workplace where there is five employees or more whilst in South Africa
there should be one hundred employees for these forums to be established.437
Therefore, the reluctance of trade unions to promote forums reflects horror of
demarcation disputes and erosion of their traditional role hence the South African
government has done little to encourage participation of these forums.438
Wallis439 suspects that the management continues to be protective of its prerogatives
and possibly disdainful of the extent to which workers can contribute to resolving
workplace problems. Whilst trade unions have been suspicious that the forums would
undermine their authority and power and the process of collective bargaining.440
Wallis continues to argue that major strikes and other occasions of industrial unrest
for example the Marikana strife, are characterized by a complete disconnect between
the needs and aspirations of workers as reflected in their demands and the commercial
pressures under which management and businesses are operating.441
For workers living in miserable circumstances to want increases in their wages to
improve their circumstances and at least to keep track of inflation is entirely
understandable, similarly, for management failing to respond positively to these needs
and demands due to economic recession is also understandable.442 However, there
does not appear to be any conversation under way between workers and management
over these issues or any understanding by the two sides of the perspective of the
434 Botha 2015 Potchefstroom Electronic Law Journal 1818. See also Kruger and Tshoose 2013Potchefstroom Electronic Law Journal 313.
435 Wood and Mahabir 2001 Industrial Relations Journal 236. See also Botha 2015 PotchefstroomElectronic Law Journal 1829.
436 Wood and Mahabir 2001 Industrial Relations Journal 239.437 S 80 of the LRA. Also Wood and Mahabir 2001 Industrial Relations Journal 240.438 Wood and Mahabir 2001 Industrial Relations Journal 241.439 Wallis “The Rule of Law and Labour Relations” 2014 Industrial Law Journal 853.440 Wallis 2014 Industrial Law Journal 854.441 Ibid.442 Ibid.
53
other.443 Workplace forums were intended to resolve this gap by encouraging both
sides to engage with one another over these issues and seek out a joint approach to
them
The researcher agrees with Botha and Wallis, that cooperation in the workplace is
essential because by affording voice to workers, it does not only make work safer and
more satisfying, but also makes it more productive.444 The researcher strongly
believes that the purpose of workplace forums is not to undermine collective
bargaining but to enhance it, especially in situations where collective bargaining is not
well suited. Since employees actively participate in the roles of decision making,
rather than occupying a passive role in collective bargaining, where such bargaining
might be even conducted in bad faith, cooperation ultimately, improves quality and
efficiency in the organisation. Theron, Godfrey and Fergus445 argue that the LRA has
not achieved the right balance between labour relations stability and workplace
democracy. Therefore if workplace forums are given a chance to operate fully, of
which that is not the case in South Africa,446 the researcher is convinced that industrial
discontent will be curtailed at optimum levels hence enjoyment of peaceful labour
relations.
2.5 Conclusion
This chapter examined the historical evolution of labour relations and labour dispute
resolution mechanisms of South Africa. Several legislations were passed in a bid to
achieve a better labour relations and dispute resolution. There is no doubt that
imbalances which existed prior 1994 have been revolutionised by the 1995 LRA.
Institutions for labour dispute resolution which lacked legitimacy due to apartheid are
now valid in terms of the new legislation. Blacks are now enjoying the fruits of a new
labour dispensation. This chapter also shed light on the dispute settlement bodies
which existed prior 1994 and post 1994 environment. There is still a struggle for an
443 Ibid.444 Botha 2015 Potchefstroom Electronic Law Journal 1817.445 Theron, Godfrey and Fergus “Organisational Collective Bargaining Rights through the Lens of
Marikana” 2015 Industrial Law Journal 849.446 Botha 2015 Potchefstroom Electronic Law Journal 1837.
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effective and simple resolution of disputes, and the recent amendment of Act 6 of 2014
attests to that. Before a critical analysis of the efficiency of current dispute resolution
is done, the succeeding chapter, deals with international labour standards. For a
comprehensive grasp of the effectiveness of South African labour dispute resolution,
an understanding of the extent to which South Africa complies with the international
instruments is crucial, hence this discussion in the next chapter.
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CHAPTER THREE
3. INTERNATIONAL LABOUR STANDARDS GOVERNING LABOUR DISPUTERESOLUTION
3.1 Introduction
The previous chapter, dealt with the historical evolvement of South African labour
dispute resolution, so this part of the study analyses the role of the International Labour
Organisation447 (ILO) on South African dispute resolution mechanisms. The ILO has
a long history of assisting member states in the areas of dispute prevention and
resolution through a number of Conventions and Recommendations.448 South Africa
was one of the founding members of the ILO, however, after being criticised for its
racial policies during the 1950s and 1960s, it resigned from the ILO in 1964 and was
only readmitted before the first democratic elections in 1994.449 The ILO’s vision is to
establish fair competition between countries through establishment of standards
setting protective values and establishing social peace through equal working
conditions.450 In order to set international standards, the ILO uses tools like
Conventions for countries to adhere to, and these treaties are not automatically
binding until a member state ratifies.451 South Africa is expected to adhere to
international provisions in terms of its domestic laws.452
447 International Labour Organisation was established in 1919. The ILO was created as a branch of theLeague of Nations in order to address all conceivable aspects of labour rights. Preliminary effortsfocused primarily on the eradication of slavery and all forms of forced labour. The agenda quicklyexpanded to include the rights to freedom of association and collective bargaining, non-discriminationin employment, and the elimination of child labour.
448 Vargha “Reflections on ILO Experience: How Can the Effectiveness of Dispute Resolution Systems BeAssessed?” 2014 International Labour Office 3. The ILO is a specialized agency of the United Nations,and as of April 2016, the ILO has 187 state members South Africa inclusive. See also Oswalt “The Rightto Improvise in Low-Wage Work” 2016-2017 Cardozo Law Review 1001.
449 Van Eck “Regulated Flexibility and the Labour Relations Amendment Bill of 2012” 2013 De Jure 601.450 Preamble to ILO Constitution. The ILO, by its existence, is the recognized international vehicle for
raising international labour standards issues in a worldwide forum.451 Smit and Van Eck “International Perspectives on South Africa’s Dismissal Law” 2010 Comparative and
International Law Journal of South Africa 48.452 S 39 of the Constitution of South Africa of 1996 states that: “when interpreting the Bill of Rights, a court,
tribunal or forum- must promote the values that underlie an open and democratic society based onhuman dignity, equality and freedom; must consider international law; and may consider foreign law.”See also s 233 of the constitution which states that “when interpreting any legislation, every court must
56
South Africa ratified conventions such as the Freedom of Association and the
Protection of the Right to Organize Convention453 and the Right to Organize and
Collective Bargaining Convention.454 South Africa also ratified the Collective
Bargaining Convention.455 These Conventions embrace the right of all employers and
workers to form independent organizations and to engage in collective bargaining and
dispute resolution with a view to improving working conditions. The question to be
answered is whether South Africa is responding to the conventions pertaining to
dispute resolution? Furthermore, reference is made to other jurisdictions such as the
United Kingdom probably to inspire South Africa. The researcher refers to United
Kingdom because of the English law origins and of course South Africa once being a
colony to Britain, there can be some sort of mentorship.
3.2 The International Labour Organisation (ILO)
The ILO was established in 1919 and it created international labour standards which
are contained in its recommendations and conventions.456 The ILO postulates that
there is a necessity to formulate an economic and social framework that would provide
the building blocks for employment and security.457 This organisation comprise 187
member countries South Africa inclusive.458 The ILO is the recognized international
machinery for uplifting international labour standards issues in a global avenue.459
This organization establishes labour standards by means of both conventions and
recommendations and has a tripartite governing structure representing government,
prefer any reasonable interpretation of the legislation that is consistent with international law over anyalternative interpretation that is inconsistent with international law”.
453 Freedom of Association and Protection of the Right to Organize Convention (No. 87) of 1948.454 The Right to Organise and Collective Bargaining Convention (No. 98) 1949.455 Collective Bargaining Convention (No.154) of 1981.456 Available at https://global.britannica.com/topic/International-Labour-Organization (accessed on 03-05-
2017). The ILO is a specialised United Nations agency (UN) responsible for the formulation ofinternational labour standards. In addition, the ILO monitors the implementation of the internationallabour standards once a country has ratified a convention dealing with any labour matter. In order toensure proper implementation and other connected matters, the ILO is often requested by variousgovernments to render technical assistance.
457 Benjamin P “Labour Market Regulation: International and South African Perspectives” 2005 HSRCEmployment and Economic Policy Research Programme 7. See also Van Eck 2013 De Jure 601.
458 Available at https://global.britannica.com/topic/International-Labour-Organization (accessed on 03-05-2017).
459 Theron “Decent Work and the Crisis of Labour Law in South Africa” 2014 Industrial Law Journal 1835.See also Van Eck 2013 De Jure 601.
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employers and workers.460 While ILO recommendations provides a mere guidance to
member states, ILO conventions, have the status of a treaty, which in principle, is
binding on the member countries that voluntarily ratify them.461 It is through these
treaties that the organization works to enforce international labour standards.
Furthermore, the ILO declaration of 1998 makes eight fundamental conventions
binding on member states, irrespective of whether these conventions have been
ratified or not,462 namely Freedom of Association and Protection of the Right to
Organize Convention,463 Collective Bargaining Convention,464 Forced Labour
Convention,465 Abolition of Forced Labour Convention,466 Minimum Age
Convention,467 Worst Forms of Child Labour Conventions,468 Equal Remuneration
Convention469 and Discrimination (Employment and Occupation) Convention.470
Therefore South Africa being a member state, ratified most of the core conventions
and are discussed in this chapter.
3.3 ILO Conventions and Recommendations on Labour Dispute Resolution
3.3.1 Collective Bargaining Convention (No.154)
The international labour standards are primarily expressions of international tripartite
agreement on matters relating to labour and other connected issues in social policy,
460 Block, Roberts, Ozeki and Roomkin “Models of International Labor Standards” 2001 Industrial Relations258. See also Theron 2014 Industrial Law Journal 1835.
461 Berik and Rodgers “Options for Enforcing Labour Standards: Lessons from Bangladesh and Cambodia”2010 Journal of International Development 56.
462 Smit “Regional Labour Standards in the SADC: Is it Possible, Given the EU Experience?” 2015 Journalof Law, Society and Development 179.
463 Freedom of Association and Protection of the Right to Organize Convention (No. 87) of 1948.464 Collective Bargaining Convention (No.154) of 1981.465 Forced Labour Convention (No. 29) of 1930.466 Abolition of Forced Labour Convention (No. 105) of 1957.467 Minimum Age Convention (No. 138) of 1973.468 Worst Forms of Child Labour Conventions (No. 182) of 1999.469 Equal Remuneration Convention (No. 100) 1951.470 Equal Remuneration Convention and Discrimination (Employment and Occupation) Convention (No.
111) of 1958.
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human and civil rights.471 Firstly, Article 6 of Collective Bargaining Convention,472
provides that:
“The provisions of this Convention do not preclude the operation of industrial relationssystems in which collective bargaining takes place within the framework of conciliationand/or arbitration machinery or institutions, in which machinery or institutions theparties to the collective bargaining process voluntarily participate.”
This Convention No 154 also provides that bodies and procedures for the settlement
of labour disputes should be designed to contribute to the promotion of collective
bargaining.473 These Conventions embrace the right of all employers and workers to
form independent organizations and to engage in collective bargaining with a view to
improving working conditions. All employees are entitled to join and participate in
trade union activities.474 In South Africa, the fundamental function of a trade union is
to engage in the process of collective bargaining with employers on behalf of their
members as well as providing representation in disciplinary proceedings.475 The role
of trade unions is further elucidated in Amalgamated Engineering v Minister of
Labour,476 where the court mentioned that a trade union concerned should act as the
spokesman of its members whenever a dispute arises between employers and
employees.477 Therefore, trade unions are essential to the furtherance of concepts of
equality and democracy in the workplace as they promote the interests of employees
by ensuring that employees are placed in an equal position to their employers.478
In order for a trade union to operate at its optimum effectiveness it has to be an
independent body.479 The independence of a trade union is vital as it ensures that it
operates as a body that is free from any bias or undue influence.480 The best interests
of employees can only be appropriately obtained if a union can acquire the trust,
471 Collins, Ewing and McColgan Labour Law (2012) 48. See also Van Eck 2013 De Jure 602.472 Collective Bargaining Convention (No.154) of 1981 (hereinafter referred to as the Convention 154).473 Article 5(2) (e) of Convention 154.474 Grogan 34.475 Grogan 35.476 Amalgamated Engineering v Minister of Labour 1949 (4) SA 908 (A).477 Ibid para 912.478 Finnemore and Van Rensburg 139.479 See s 113 of the LRA.480 Mischke “Getting Foot at the Door: Organizational Rights and Collective Bargaining in terms of LRA”
2004 Contemporary Labour Law 51. See also s 95 (2) of the LRA which reads “a trade union isindependent if-(a) it is not under the direct or indirect control of any employer or employers’ organisation; and(b) it is free of any interference or influence of any kind from any employer or employers’ organisation.”
59
cooperation and dependence of its members.481 This will only come about if members
are convinced that their representatives will always act on their behalf without
prejudicing their interests.482 The LRA attempts to assist in acquiring the trust of
members by ensuring that a trade union does not undertake its duties for its own
benefit.483 Therefore the LRA seeks to regulate the constitutions of trade unions so
as to ensure that they engage in ethical and fair practices.484
3.3.2 Freedom of Association and Protection of the Right to Organize Convention (No.
87)
The ILO promotes freedom of association through the Freedom of Association and
Protection of the Right to Organise Convention.485 Article 2 of Convention 87 states
that workers and employers, without distinction, shall have the right to establish and
join organisations of their own choosing. More so, Article 3, provides that:
“Workers' and employers' organisations shall have the right to draw up theirconstitutions and rules, to elect their representatives in full freedom, to organise theiradministration and activities and to formulate their programmes.”
Furthermore, The ILO’s Committee on Freedom of Association contemplates that the
right to bargain freely with employers, comprises an essential element in freedom of
association, and trade unions should have the right, through collective bargaining or
other lawful means, to seek to improve the living and working conditions of those whom
the trade unions represent.486 In addition, Article 5 of Convention 87mentions that:
“Workers' and employers' organisations shall have the right to establish and joinfederations and confederations and any such organisation, federation or confederationshall have the right to affiliate with international organisations of workers andemployers.”
481 Ibid.482 S 95 (1) of the LRA “any trade union may apply to the registrar for registration if- (b) it has adopted a
constitution that meets the requirements of subsections (5) and (6).”483 Mischke 2004 Contemporary Labour Law 52. Also see Adigun “The Implications of Social Democracy
on Industrial Relations in Nigeria” 2014 Journal of Emerging Trends in Economics and ManagementSciences 29.
484 S 95(5) (a) - (w) of the LRA.485 Freedom of Association and Protection of the Right to Organize Convention (No.87) of 1948 (hereinafter
referred to as the Convention 87).486 Read “Recognition, Representation and Freedom of Association under the Fair Work Act” 2009 Centre
for Employment and Labour Relations Student Working Paper 5.
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In South Africa, collective bargaining has many objectives, however, the main
objective is the conclusion of collective agreements pertaining to conditions of
employment as well as matters relating to the mutual interest of both an employer and
an employee.487 A collective agreement is then reached between a trade union and
the employer, which would stipulate the conceded conditions of employment or other
matters pertaining to the mutual interest of employees and employers.488 In Ceramic
Industries Ltd t/a Betta Sanitay Ware v NCBAWU,489 the court stated that the
objectives of the LRA must be interpreted in conformity with international law and the
Constitution.490 It must be understood that the Constitution was enacted to redress
the injustices of the past not only within society but also within the field of labour. It is
for this reason that the LRA has the dual function of inculcating transformation in the
workplace as well as in society at large. In Foodgro (A division of Leisurenet Ltd) v
Keil,491 the Labour Appeal Court acknowledged that unjust laws that govern society
impact negatively on labour relations.492
3.3.2.1 Role and Functions of Trade Unions within the Scope of Freedom of
Association
Of the rights and freedoms protected by the ILO, Freedom of Association is a core
freedom as it is essential to ILO’s fundamental goal.493 Trade unions are the
institutional vehicles which facilitate the promotion of organised collective
bargaining.494 Freedom of Association cannot be exercised effectively without
functioning trade unions and Ewing495 proffers five functions of trade unions, namely,
487 Brand et al 31.488 S 213 of LRA.489 Ceramic Industries Ltd t/a Betta Sanitary Ware and v NCBAWU [1997] 6 BLLR 697 (LAC).490 Ibid para 70.491 Foodgro (A division of Leisurenet Ltd) v Keil [1999] 9 BLLR 875 (LAC).492 Desai and Habib 1997 The Journal of Modern African Studies 495.493 ILO’s goal is that all should have the right to pursue their material well-being in conditions of freedom,
dignity, economic security and equal opportunity, and affirmed that all national policies and measures,should be judged and accepted only in so far as they promote and do not hinder the achievement thatprogress. See also Declaration Concerning the Aims and Purposes of the ILO annex to the Constitutionof the ILO and Standing Orders of the International Labour Conference, adopted at Philadelphia 10 May1994.
494 Brooks “The Reform of Labour Laws: An International Comparison” 2006 University of New SouthWales Law Journal 43.
495 Ewing “The Function of Trade Unions” 2005 Industrial Law Journal 13.
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service, representation, regulatory, governmental and public administration function.
The particular function dominant at a given time is likely to reflect the way in which the
state values and protects Freedom of Association.496 Ewing considers that, in a state
which promotes voluntary unionism, and relies on free market principles to justify the
protection of an individualist freedom not to associate, unions will be more likely to
take up service and limited individual representative functions.497 For Ewing, the
regulatory function is the most important function of trade unions, although he notes
that where regulatory functions become dominant over representational functions, an
employee is less likely to be a member of the union in order to benefit from the
activities of the union.498
3.3.3 The Right to Organise and Collective Bargaining Convention (No. 98)
This convention just like convention 154 and convention 87, provides that workers
shall enjoy adequate protection against acts of anti-union discrimination, including
requirements that workers not join or relinquish trade union membership for
employment, or dismissal of workers because of union membership or participation in
union activities.499 Collective bargaining has the potential of reducing disputes through
the resolution of labour disputes, and can promote workplace democracy and ensure
the recognition and protection of the worker's rights.500 It is a means of regulating
relations between management and employees and for settling disputes between
them. Furthermore, Article 1 of this Convention provides that:
“Workers shall enjoy adequate protection against acts of anti-union discrimination,including requirements that workers not join or relinquish trade union membership foremployment, or dismissal of workers because of union membership or participation inunion activities.”
Article 1 of Convention 98 is commensurate with s 23 of the Constitution of South Africa whichreads:
“(1) Everyone has the right to fair labour practices.(2) Every worker has the right
496 Read 2009 Centre for Employment and Labour Relations Student Working Paper 8.497 Ewing 2005 Industrial Law Journal 13.498 Usually the benefits of the service and representative functions of unions are only available to union
members499 Read 2009 Centre for Employment and Labour Relations Student Working Paper 8.500 Ibid.
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(a) to form and join a trade union;(b) to participate in the activities and programmes of a trade union; and(c) to strike.(3) Every employer has the right(a) to form and join an employers’ organisation; and(b) to participate in the activities and programmes of an employers’ organisation.(4) Every trade union and every employers’ organisation has the right(a) to determine its own administration, programmes and activities;(b) to organise; and(c) to form and join a federation.(5) Every trade union, employers’ organisation and employer has the right to engagein collective bargaining. National legislation may be enacted to regulate collectivebargaining. To the extent that the legislation may limit a right in this Chapter, thelimitation must comply with section 36(1).(6) National legislation may recognise union security arrangements contained incollective agreements. To the extent that the legislation may limit a right in thisChapter, the limitation must comply with section 36(1).”501
In addition, Article 4 of the same Convention provides that:
“Measures appropriate to national conditions shall be taken where necessary, toencourage and promote the full development and utilization of the machinery forvoluntary negotiation between employers or employers' organizations and workers'organizations with a view to the regulation of terms and conditions of employment bymeans of collective agreements.”
Wage bargaining is the area where most energies are devoted in negotiations.
Employers come to the table with sub-inflation offers, whilst unions arrive with
demands that are above inflation rates.502 Wage bargaining is the most understood
aspect of collective bargaining and the percentage talk such as 10% wage increase,
remains the dominant form of articulating demands and counter offers in collective
bargaining.503 However, Elsley and Mthethwa504 argue that 10% of R1000 and 10%
of R10 000 are very different realities. Bearing in mind that the level of numerical
literacy is relatively poor within the trade union movement and among membership,
Elsley and Mthethwa believe that if trade unions fail to communicate the real effect of
a settlement to workers effectively, it can result in the perception among workers that
unions are misleading them.505
501 See also s 5 (1) of the LRA which says “no person may discriminate against an employee for exercisingany right conferred by this Act.”
502 Elsley and Mthethwa “Wage Determination in South Africa since 1994” 2014 Labour Research Service9.
503 Ibid.504 Elsley and Mthethwa 2014 Labour Research Service 10.505 Ibid.
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The stress put on wage bargaining is perhaps also a sign of the weaknesses of both
employers and trade unions. There are often severe information and skill inequalities
between union negotiators and employer negotiators, and they favour employers.506
Both parties come to the table with narrow agendas and do not always have a fully
developed strategic framework for collective bargaining. Negotiations require the
parties to be conversant with some very technical terrain, including economics, health
benefits, and provident funds.507
The Marikana crisis for instance, conditions of work on the mines, especially for
underground workers, are particularly intense and unique to other industries.508 The
mining industry has a long history of migrant labour. This resulted in a situation where
many workers have two homes, perhaps even two lives in very poor conditions.509
National Union of Mineworkers (NUM) suggests that the company, Lonmin, should
shoulder much of the blame for the events which unfolded because of the way in which
it subverted established bargaining practice by unilaterally awarding increases to only
one layer of workers outside of the agreed settlement.510 Before the Association of
Mineworkers and Construction Union (AMCU) began to take a leading role in the
conflict, striking workers repeatedly called for management to talk to them.511 Given
that the company had earlier bypassed established collective bargaining channels, its
failure to subsequently address workers directly amounted to a complete breakdown
of negotiations and suggests that the company was operating in an ad hoc way without
much thought for the implications of their actions.512
South Africa ratified Conventions No 87 and No 98 on 18 February 1996, and in
keeping with its international obligations, section 23 of the Constitution provides that
every worker has the right to form and join a trade union, participate in the activities
506 Ibid.507 Ibid.508 Improving Workers’ Living Conditions in South Africa’s Gold Mining Industry available at
http://www.goldwagenegotiations.co.za/assets/downloads/fact-sheets/2013/factsheet-accommodation.pdf (accessed on 25-05-2017).
509 South Africa Could Do More for Miners, Says ILO Mining Specialist available athttp://www.ilo.org/global/about-the-ilo/newsroom/news/WCMS_187783/lang--en/index.htm (accessedon 25-05-2017).
510 Elsley and Mthethwa 2014 Labour Research Service 11.511 Ibid.512 Elsley and Mthethwa 2014 Labour Research Service 12.
64
and programmes of a trade union and to strike.513 There is no doubt that ILO
Conventions No 87 and No 98 enunciate the ILO's commitment to the protection and
promotion of employer and employees freedom of association.514 Furthermore, in re
Certification of the Constitution of the Republic of South Africa,515 the Constitutional
Court held that strike action is the primary mechanism through which workers exercise
collective power and the right to strike enables workers to bargain effectively with their
employers.516
According to Van Jaarsveld and Van Eck,517 the significance of bargaining collectively
is to achieve the following:
“By bargaining collectively with organised labour management seeks to give effect toits legitimate expectations that the planning of production, distribution, etc, should notbe frustrated through interruptions of work. By bargaining collectively withmanagement, organised labour seeks to give effect to its legitimate expectations thatwages and other conditions of work should be such as to guarantee a stable andadequate form of existence and has to be compatible with the physical integrity andmoral dignity of the individual and also that jobs should be reasonably secure.”
3.3.4 Termination of Employment Convention (No. 158)
This Convention 158 provides standard guidelines in respect of the termination of any
worker's employment.518 Article 2 of the convention excludes certain categories of
workers from protection against dismissal, namely fixed-term contract workers,
workers employed on a probationary period, and workers employed on a casual basis.
For the purposes of this discussion, the study narrows focus on Articles 4 to 8 of
Convention 158 which deals with pre-dismissal requirements. Article 4 of Convention
158 provides that:
513 S 23 of the Constitution of South Africa 1996. See also Cohen and Matee “Public Servants’ Right toStrike in Lesotho, Botswana and South Africa-A Comparative Study” 2014 Potchefstroom ElectronicLaw Journal 1641.
514 Cohen and Matee 2014 Potchefstroom Electronic Law Journal 1632.515 In Re Certification of the Constitution of the Republic of South Africa 1996 4 SA 744 (CC).516 Re Certification of the Constitution of the Republic of South Africa para 66. See also NUMSA v Bader
Bop (Pty) Ltd 2003 2 BCLR 182 (CC) para 13.517 Van Jaarsveld and Van Eck 331.518 Convention concerning Termination of Employment at the Initiative of the employer entered into force
on 23 November 1985. See also Termination of Employment Recommendation, (No 166)1982.
65
“The employment of a worker shall not be terminated unless there is a valid reason forsuch termination connected with the capacity or conduct of the worker or based on theoperational requirements of the undertaking, establishment or service.”
This makes it clear that the ILO only recognises three broad categories of permissible
grounds upon which a worker's services may be terminated which are those related to
misconduct, incapacity, or the employer's operational requirements.519 It is also clear
that dismissal must be based on a valid reason which can be classified within one of
these categories. It is submitted that the degree or severity of particular behaviour
could play a role in determining whether the behaviour can be categorised as a valid
reason for dismissal.520 Furthermore, Article 5 of Convention 158 states that:
“The following, inter alia, shall not constitute valid reasons for termination:(a) Union membership or participation in union activities outside working hours or, withthe consent of the employer, within working hours;(b) Seeking office as, or acting or having acted in the capacity of, a workers'representative;(c) The filing of a complaint or the participation in proceedings against an employerinvolving alleged violation of laws or regulations or recourse to competentadministrative authorities;(d) Race, colour, sex, marital status, family responsibilities, pregnancy, religion,political opinion, national extraction or social origin;(e) Absence from work during maternity leave.”
This list of grounds, according to the ILO, should automatically be viewed as
impermissible grounds upon which a worker's services may not be terminated.521 It is
clear that this list is not exhaustive and that member countries are free to include
additional grounds.522 In addition, Article 6 provides that:
“Temporary absence from work because of illness or injury shall not constitute a validreason for termination.”523
More so, Article 7 of Convention 158 provides that:
“The employment of a worker shall not be terminated for reasons related to theworker's conduct or performance before he is provided an opportunity to defend
519 Van Niekerk “Is the South African Law of Unfair Dismissal Unjust: A Reply to Martin Brassey” 2013Indutrial Law Journal 32-33. Also see s 188 of the LRA 66 of 1995. And also Le Roux 2014 IndustrialLaw Journal 44.
520 Smit and Van Eck 2010 Comparative and International Law Journal of South Africa 49.521 Smit and Van Eck 2010 Comparative and International Law Journal of South Africa 50.522 South Africa, for example, has, in addition to the mentioned grounds included in its list of automatically
unfair reasons for termination, the dismissal of an employee who engages in strike action and thedismissal of a worker as a consequence of the transfer of a business as a going concern. See also s187 of the LRA 66 of 1995.
523 In addition to Article 5, Article 6 adds that the temporary illness or injury of a worker shall not constitutea valid reason for termination.
66
himself against the allegations made, unless the employer cannot reasonably beexpected to provide this opportunity.”
Article 7 is not clear on whether this opportunity to defend oneself must take place at
the workplace or, in the alternative, before an independent body or forum.524 It is,
however, submitted that there are two indications that should be granted at the
workplace.525 The first is contained in the second part of Article 7, which states that
the employer may dispense with this opportunity if it appears that it cannot reasonably
be expected to do so.526 The second indicator is contained in Article 8 of Convention
158 provides that:
“1. A worker who considers that his employment has been unjustifiably terminated shallbe entitled to appeal against that termination to an impartial body, such as a court,labour tribunal, arbitration committee or arbitrator.”
This Article provides for an appeal to an independent external body and in South
African case, these external bodies are the CCMA, Bargaining Councils and Private
Agencies. Therefore when an employee is not happy with the outcome of an internal
hearing, such external bodies can be consulted.
3.3.5 Labour Relations (Public Service) Convention (No. 151)
To add on, Article 8 of Labour Relations (Public Service) Convention527, states that:
“The settlement of disputes arising in connection with the determination of terms andconditions of employment shall be sought, as may be appropriate to nationalconditions, through negotiation between the parties or through independent andimpartial machinery, such as mediation, conciliation and arbitration, established insuch a manner as to ensure the confidence of the parties involved.”
In addition, Article 9 of the above Convention states that:
“Public employees shall have, as other workers, the civil and political rights which areessential for the normal exercise of freedom of association, subject only to theobligations arising from their status and the nature of their functions.”
524 Smit and Van Eck 2010 Comparative and International Law Journal of South Africa 50.525 Ibid.526 Article 7 of Convention 158 does not provide details in respect of notification periods, the right to call
witnesses, or an entitlement to legal representation.527 Labour Relations (Public Service) Convention (No. 151) of 1978 (hereafter referred to as the Convention
151).
67
In South Africa, CCMA was established in terms of sections 112-126 of the LRA. Its
functions include dispute resolution, dispute management and institution building and
training within the labour arena. It also regulates the performance of dispute resolution
functions by bargaining councils and private dispute resolution agencies.528 The
Explanatory Memorandum Explanatory Memorandum 1995 accompanying the LRA
describes the CCMA’s main function as the attempt to resolve disputes by conciliation
so as to reduce the incidence of industrial action and litigation.529 The CCMA was set
as a juristic person, divorced from the state, political parties, trade unions and
employer’s organisations.530
It is however not absolute that this body is free from any government intervention
because of the state’s paramount role in the enactment of laws and their
enforcement.531 The main objective of the CCMA is to provide for an effective, simple,
expeditious and cost-effective dispute resolution facility to the labour relations
community.532 It was preconceived that as many disputes as possible will be settled
through conciliation culminating in a minority of disputes referred to arbitration or the
Labour Court.533 Another objective of the CCMA is to assist in the evolution of South
Africa labour relations by encouraging effective strategies for dispute prevention.534
The CCMA may also accredit private agencies or bargaining councils to perform any
or all of its functions.535 In the case of National Bargaining Council for the Road Freight
Industry v Meyer t/a Oakley Carriers,536 it was stated that the CCMA is not a court of
law but a tribunal with wide range of investigative and diverse functions.
More so, the South African Public Service Labour Relations Act537 provides for
collective bargaining in the public service. Conditions of employment and regulations
pertaining to the public sector are negotiated at the central level through the Public
528 Benjamin and Cooper 2016 Swiss Programme for Research on Global Issues for Development 7.529 Benjamin and Cooper 2016 Swiss Programme for Research on Global Issues for Development 8.530 S 112 of the LRA states that the Commission for Conciliation, Mediation and Arbitration is hereby
established as a juristic person.531 Bosch et al 22.532 Hepple “Is South African Labour Law Fit for the Global Economy” in Le Roux and Rycroft (eds) (2012)
14.533 Bendeman 2006 African Journal on Conflict Resolution 81.534 Ibid.535 S115 of LRA.536 National Bargaining Council for the Road Freight Industry v Meyer t/a Oakley Carriers (2000) 21 ILJ
1391 (LC).537 Public Service Labour Relations Act 105 of 1994.
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Service Bargaining Council (PSBC) which is the largest bargaining structure.538 The
Council comprises four designated sectors covering education, public health and
social development, safety and security and the general public service sector.539 The
council's key function is to create a platform for developing sound labour relations in
the public service. Public employees have made use of the available rights to bargain
collectively.
3.3.6 The Voluntary Conciliation and Arbitration Recommendation (No. 92) and the
Examination of Grievances Recommendation (No. 130)
Furthermore, important ILO recommendations include the Voluntary Conciliation and
Arbitration Recommendation No 92540 and the Examination of Grievances
Recommendation No 130541 which both lay down principles and provide guidance that
is useful in measuring the effectiveness of dispute resolution systems. These
Recommendations calls for the participation of workers and employers on an equal
footing as a cornerstone for the effective management and governance of dispute
resolution systems.542 Recommendation No 92 places emphasis on dispute
prevention which is associated with finding voluntary solutions of consensus-oriented
systems involving the parties to the dispute.543 In an attempt to preventing and
minimizing disputes, Recommendation No 130 calls for the establishment and proper
functioning of a sound personnel policy which should take into account the rights and
interests of workers based on cooperation with the employees’ representatives.544 It
further provides that the grievance procedures should be so formulated and settlement
of the case freely accepted by the employee and the employer to show the importance
of consensus based systems.545
538 Mboh (LLM-thesis, NWU, 2012) 76.539 Ibid.540 Voluntary Conciliation and Arbitration Recommendation (No 92), 1951. There is however a fundamental
difference between ILO Conventions and Recommendations, the former are treaties and thereforebinding on the ratifying member state, while the latter are non-binding guidelines.
541 Examination of Grievances Recommendation (No 130), 1967.542 Recommendation (No 92) para 2 and Recommendation (No 130) para 6.543 Recommendation (No 92) para 1.544 Recommendation (No 130) para 7 (1) and (2).545 Recommendation (No 130) para 11.
69
In addition, Recommendation No 92 indicates that voluntary conciliation procedures
that assist in prevention and settlement of industrial disputes between employers and
employees should be free of charge and expeditious.546 The Recommendation 92
simply reads as follows:
“Articles-
1. Voluntary conciliation machinery, appropriate to national conditions, should be madeavailable to assist in the prevention and settlement of industrial disputes betweenemployers and workers.2. Where voluntary conciliation machinery is constituted on a joint basis, it shouldinclude equal representation of employers and workers.3. (1) The procedure should be free of charge and expeditious; such time limits for theproceedings as may be prescribed by national laws or regulations should be fixed inadvance and kept to a minimum.(2) Provision should be made to enable the procedure to be set in motion, either onthe initiative of any of the parties to the dispute or ex officio by the voluntary conciliationauthority.4. If a dispute has been submitted to conciliation procedure with the consent of all theparties concerned, the latter should be encouraged to abstain from strikes and lockoutswhile conciliation is in progress.5. All agreements which the parties may reach during conciliation procedure or as aresult thereof should be drawn up in writing and be regarded as equivalent toagreements concluded in the usual manner.6. If a dispute has been submitted to arbitration for final settlement with the consent ofall parties concerned, the latter should be encouraged to abstain from strikes andlockouts while the arbitration is in progress and to accept the arbitration award.7. No provision of this Recommendation may be interpreted as limiting, in any waywhatsoever, the right to strike.”
However, ILO is faced with a question of whether the guidance provided by these
Recommendations sufficient to develop an effective dispute resolution system in any
member state?547 With the intention to identify universal guidelines for effective,
accessible systems worldwide, it is imperative to define key terms related to dispute
resolution such as conciliation, mediation and arbitration which might be considered
as universally familiar yet interpreted differently.548
546 Recommendation (No 92) para 3 (1).547 Vargha 2014 International Labour Office 4.548 Vargha 2014 International Labour Office 5.
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3.3.7 The ILO Guide on Labour Dispute Systems
The ILO Guide on labour dispute systems has come up with a guide entitled ‘Labour
dispute systems: Guidelines for improved performance’ which is used in support of
technical assistance to build and improve dispute prevention and resolution systems
and also help member states to assess their systems.549 The Guide emphasises the
importance of offering a range of services that respond to the different needs of users
and these include not only conciliation, mediation and arbitration but also investigation,
counselling, training and advice with the view of ensuring the effectiveness and
accessibility of dispute resolution mechanisms.550 It also provides the need for simple
and clear legal frameworks for services to be easy to understand, accessible and
timeous.551 Furthermore, the Guide recommends professionalism and independence
to those who handle labour disputes without interference from government.552
These Guidelines considers different approaches to providing effective voluntary
conciliation and arbitration services including within the labour administration and as
part of State-funded commissions and bodies that operate with a greater degree of
independence and autonomy.553 Additionally, providing a voluntary, free of charge,
and expeditious mechanism for labour disputes settlement through conciliation and
arbitration. The Guide provides advice on the steps that need to be taken to either
revitalize an existing system or establish an independent institution, ensuring that
these operate efficiently and provide effective dispute resolution services.554
549 Available at http://www.ilo.org/ifpdia/information-resources/publications/WCMS211468/index.htm(accessed on 15-09-2016).
550 Vargha 2014 International Labour Office 6.551 Ibid.552 Recommendation (No 92) para 2.553 Available at http://www.ilo.org/ifpdia/information-resources/publications/WCMS211468/index.htm
(accessed on 15-09-2016).554 Ibid.
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3.4 The International Bill of Human Rights
3.4.1 The Universal Declaration of Human Rights (UDHR)
The Universal Declaration of Human Rights (UDHR),555 which is a non-binding but
authoritative document, the positivist finds that several labour rights are human rights
namely Article 4 of the UDHR, which prohibits slavery and servitude. In addition,
Article 20 of the UDHR provides that "everyone has the right to freedom of peaceful
assembly and association.” Furthermore, Article 23, provides that everyone has the
right to work and that everyone should work in a job freely chosen, receive equal pay
for equal work, receive decent remuneration for work performed, which should
guarantee a dignified life for herself and her family, and that everyone has a right to
form and join trade unions. In addition, Article 24, in turn, guarantees a right to rest
and leisure, including reasonable limitations of working hours, as well as holidays with
pay. Listing these provisions, a positivist is satisfied that not only are labour rights
human rights, but that there is an extensive list of these rights in human rights law.556
3.4.2 The International Covenant on Economic, Social and Cultural Rights (ICESCR)
Article 6 of the ICESCR557 recognises the right to work, and defined as the opportunity
of everyone to gain their living by freely chosen or accepted work. Parties are required
to take appropriate steps to safeguard this right, including technical and vocational
training and economic policies aimed at steady economic development and
ultimately full employment.558 The right implies parties must guarantee equal access
to employment and protect workers from being unfairly denied employment.
Furthermore, parties must prevent unfair discrimination in the workplace and ensure
555 Adopted by the United Nations General Assembly on 10 December 1948.556 Mantouvalou “Are Labour Rights Human Rights?” 2012 European Labour Law Journal 3.557 ICESCR is a multilateral treaty adopted by the United Nations General Assembly on 16 December
1966, and entered into force from 3 January 1976.558 Article 6 of ICESCR of 1966.
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access for the disadvantaged. The fact that work must be freely chosen or accepted
entails that forced or child labour should not be permitted.559
The work referred to in Article 6 above, is a decent work as stipulated in Article 7 which
says:
“The States Parties to the present Covenant recognize the right of everyone to theenjoyment of just and favourable conditions of work which ensure, in particular:(a) Remuneration which provides all workers, as a minimum, with:(i) Fair wages and equal remuneration for work of equal value without distinction of anykind, in particular women being guaranteed conditions of work not inferior to thoseenjoyed by men, with equal pay for equal work;(ii) A decent living for themselves and their families in accordance with the provisionsof the present Covenant;(b) Safe and healthy working conditions;(c) Equal opportunity for everyone to be promoted in his employment to an appropriatehigher level, subject to no considerations other than those of seniority andcompetence;(d ) Rest, leisure and reasonable limitation of working hours and periodic holidays withpay, as well as remuneration for public holidays”
Furthermore, Article 8 recognises the right of workers to form or join trade unions and
protects the right to strike. It allows these rights to be restricted for members of the
armed forces, police, or government administrators.
3.5 Regional Labour Standards
3.5.1 The European Union (EU) Experience and the Charter of Fundamental Rights
of the European Union
All countries in the EU believe that the labour market must be regulated by the social
partners and that collective bargaining is the appropriate mechanism for employee
participation.560 Furthermore, trade unions and employers’ associations within the EU
are viewed as legitimate institutions within the collective bargaining process.561 This
559 See also Article 8 of the International Covenant on Civil and Political Rights (ICCPR) which is amultilateral treaty adopted by the United Nations General Assembly on 16 December 1966, and cameinto force from 23 March 1976. It states that no one shall be held in slavery, slavery and all their formsof slave trade shall be prohibited. It further stipulates that no one shall be held in servitude and no oneshall be required to perform forced or compulsory labour.
560 Smit 2015 Comparative and International Law Journal of South Africa 169.561 Ibid.
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Charter is European based and it enshrines certain political, social, and economic
rights for European citizens.562 Article 5 of the EU Charter563 states that no one shall
be held in slavery or servitude and no one shall be required to perform forced or
compulsory labour. Furthermore, Article 12 states that everyone has the right to
freedom of peaceful assembly and to freedom of association at all levels, in political,
trade union and civic matters, which implies the right of everyone to form and to join
trade unions for the protection of his or her interests. More so, Article 15 stipulates
that everyone has the right to engage in work and to pursue a freely chosen or
accepted occupation. In addition, Article 27 mentions that workers or their
representatives, must at the appropriate levels, be guaranteed information and
consultation in good time in the cases and under the conditions provided for by
Community law and national laws and practices.
More so, Article 28 of the EU Charter affords right of collective bargaining and action
as it states that workers and employers, or their respective organisations, have, in
accordance with community law and national laws and practices, the right to negotiate
and conclude collective agreements at the appropriate levels and, in cases of conflicts
of interest, to take collective action to defend their interests, including strike action. In
addition, Article 30 protects employees in the event of unjustified dismissal as it states
that “every worker has the right to protection against unjustified dismissal, in
accordance with community law and national laws and practices”. Article 31 provides
for a fair and just working environment as it states “that every worker has the right to
working conditions which respect his or her health, safety and dignity”. It further states
that every worker has the right to limitation of maximum working hours, to daily and
weekly rest periods and to an annual period of paid leave.
562 It was drafted by the European Convention and solemnly proclaimed on 7 December 2000 bythe European Parliament, the Council of Ministers and the European Commission and entered intoforce of the Treaty of Lisbon on 1 December 2009.
563 The Charter of Fundamental Rights of the European Union of 2000 (hereinafter referred to as the EUCharter).
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3.6 The South African Approach
The researcher believes that South Africa seem to be generally in harmony with
several ILO standards mentioned above in the text. It is worth mentioning that the
Constitution of the Republic of South Africa provides a fertile ground for collective
bargaining and dispute resolution.564 There is no doubt that the Constitution further
affords the protection of vulnerable employees in the deliverance of social justice.565
The LRA on the other hand, promotes collective bargaining and freedom of
association. However, South Africa should refer to United Kingdom and borrow some
of the methods to enhance its dispute resolution structure.
Firstly, the distinction between South Africa and United Kingdom is that in United
Kingdom, the Employment Tribunal comprises 3 persons, namely, the Judge, a trade
unionist and an employer representative566, whilst in South Africa, an arbitrator solely
decides on the matter. Premised on the proverb that says two heads are better than
one, there is no doubt that a composition of more than one decision-maker can go a
long way in curtailing large number of matters taken to review or appeal. The
researcher believes South Africa needs to borrow this idea from United Kingdom
because it is difficult for 3 people to miss a point, and this explains why there is a
floodgate of cases taken on review to the Labour Court.
Secondly, if a party in United Kingdom is unhappy with the Tribunal award, he can
appeal to the courts567, whilst in South Africa one can only apply for a review to the
Labour Court.568 It can be argued that an application for appeal is much faster
compared to a review because the Labour Court cannot review a matter without the
availability of arbitration records.569 Since the missing of arbitration records is
becoming a nightmare, the researcher argues that incorporating an appeal in labour
dispute resolution especially when records disappear, can be an option to fasten
resolution of disputes.
564 See s 23 of the Constitution and s 7 of the LRA.565 Ibid.566 Collins et al 28.567 Collins et al 30.568 See s 145 of the LRA.569 Toyota SA Motors (Pty) Ltd v CCMA [2015] ZACC 40 para 29, stated that “the missing of arbitration
records has become a common headache in South African Courts.”
75
Thirdly, the conciliation process in United Kingdom is voluntary570 unlike in South
Africa where conciliation is the first step towards resolution of disputes.571 Therefore
the elimination of South Africa’s mandatory conciliation process as per LRA, can be
helpful in fast-tracking the resolution of disputes especially where employers refrain
from attending. Despite these differences, the CCMA and the Employment Tribunal
of United Kingdom allow legal representation which creates similar problems that have
been identified in South Africa in relation to resolving disputes expeditiously.572
3.7 Conclusion
Generally, South Africa as an ILO Member, is in compliance with several ILO
conventions although there are some conventions and recommendations which are
yet to be ratified.573 In order for South Africa to improve its dispute resolution, it has
to consider ILO Guidelines on labour dispute systems, recommendations and
conventions. Several Conventions were ratified and the option of an industrial action
is not disregarded if collective bargaining fails574 Independent bodies such as the
CCMA are operational in South Africa giving effect to ILO standards. In the same
breadth, the Bargaining Councils are also operational in resolving interest and rights
disputes. In addition, reference to the United Kingdom was pertinent in advising South
Africa to borrow some of the concepts that are necessary in improving its dispute
resolution system. The next chapter now deals with the labour dispute resolution under
the 1995 LRA.
570 Collins et al 26.571 See s 135 (1) of the LRA which provides: “when a dispute has been referred to the Commission, the
Commission must appoint a commissioner to attempt to resolve the dispute through conciliation”.572 Collins et al 25.573 Bosch “Bent out of Shape: Critically Assessing the Application of the Right to Fair Labour Practices in
Developing South African Labour Law” 2008 Stellenbosch Law Review 380.574 Le Roux 2014 Industrial Law Journal 45.
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CHAPTER FOUR
4. LABOUR DISPUTE RESOLUTION UNDER THE LABOUR RELATIONS ACT 66OF 1995
4.1 Introduction
The previous chapter discussed the ILO Conventions and International Bill of Human
Rights as important Instruments for South Africa to abide by. The whole idea of
enacting a new statute, that is the LRA of 1995, was to do away with the cumbersome,
adversarial and ineffective labour dispute resolution that characterised the previous
Acts. The LRA plays a significant role in attaining social justice by envisioning a
speedy resolution of labour disputes.575 This Act attempts to provide procedures
appropriate for resolution of disputes in a bid to realise labour peace.576 The ADR
methods encouraged by the LRA acknowledges active participation by the parties
towards dispute settlement. This chapter dwells on the dispute resolution processes
and cases to establish how practicable it is, to resolve disputes effectively.
4.2 Dispute Resolution Processes
4.2.1 Resolution of Labour Disputes through Negotiation
Bendix defines negotiation as the interpersonal process used by representatives of
management and unions with institutional arrangements of collective bargaining in
order to resolve differences.577 On the other hand, Botha defines negotiation as a
discussion aimed at reaching compromise and it usually takes place in form of
575 See s 1 (d) (iv) of the LRA.576 Brand et al 17.577 Bendix 563.
77
collective bargaining, in negotiating the terms and conditions of employment.578
Collective bargaining deals with a wide range of disputes of interests such as
employee remuneration, service benefits, compensation etc.579 It stands to reason
that the greatest benefit from collective bargaining can be obtained when a system in
place promotes good faith bargaining and efficient enforcement of collective
agreements.580 Furthermore, one of the purposes of the LRA, is to promote negotiation
through collective bargaining and provide a framework within which employers,
employer’s organisation and trade unions can bargain collectively.581 However, if the
bargaining process is misunderstood, misinterpreted and mismanaged, the
negotiations will not yield any meaningful results and it may take time to resolve
disputes.582
4.2.1.2 Approaches in Negotiation
Usually the results of the negotiation process is influenced by the style or approach
that concerned parties engaged in. The major approaches in a negotiation process
are integrative or needs-based bargaining and positional bargaining.583
4.2.1.2.1 Integrative or Needs-Based Bargaining
Integrative bargaining is whereby disputing parties focus on their interests or needs
and those of the other parties.584 It is in this approach whereby parties attempt to
coexist rather than taking robust bargaining positions.585 There is no doubt that such
578 Botha 2015 Potchefstroom Electronic Law Journal 1813. See also Bosch et al 9 where negotiation isdefined as a process of verbal interaction between parties with the objective of arriving at a mutuallyacceptable agreement over a problem of interest between them.
579 Bendix 611.580 Botha 2015 Potchefstroom Electronic Law Journal 1813.581 Sections 11-61 of LRA.582 Botha 2015 Potchefstroom Electronic Law Journal 1814. Also see Buckham The Effects of Centralised
or Decentralised Bargaining Process in the Management of Industrial Actions in the South AfricanMining Industry (MBA-thesis, UP, 2014) 1.
583 Spangler “Integrative or interest-based bargaining” 2003 available athttp://www.beyondintractability.org/essay/interest-based-bargaining (accessed 01-02-2017).
584 Bosch et al 10.585 Katz et al 2015 Cornell University ILR School 127.
78
an approach enhances and builds a better understanding and relationship as it creates
an environment of solution seeking and tolerance.586 However, the limitation of this
approach is based on the assumption that both parties are committed and have
requisite skill and ability to use it.587 Furthermore, its success depends on trust and
requires a high degree of patience in terms of time and dealing with emotions.588 The
researcher strongly believes that this kind of bargaining, requires mature people who
are not selfish, otherwise the whole idea will be put into disrepute and yields no positive
results.
4.2.1.2.2 Positional Bargaining
This type of approach is adversarial in nature as a stronger party uses power to force
the other party to see things the way the stronger party sees them.589 It is also referred
to as distributive or win-lose bargaining. Therefore a party that adopts this approach
is usually disinterested with the concerns and interests of the other party.590 In similar
vein, positional bargaining is associated with unrealistic demands and unwillingness
to engage in problem solving with the other party.591 Botha592 is of the view that some
trade unions are only concerned with the improvement of their members and demand
higher wages at the expense of employers thereby overlooking the effect of their
actions on other workers and society. It is because of this approach why negotiations
usually fail. Parties have little in common that enhance common solution solving.593
Twala594 avowed that it is interesting to note that the disagreements between National
Union of Mineworkers (NUM) and the Association of Mineworkers and Construction
Union (AMCU) prior to the Marikana massacre, involved accusations that NUM was
colluding with the enemy, namely the employers. Already, there can be no reasonable
586 Katz et al 2015 Cornell University ILR School 128.587 Bosch et al 10.588 Ibid.589 Katz et al 2015 Cornell University ILR School 126.590 Ibid.591 Bosch et al 11.592 Botha “Responsible Unionism during Collective Bargaining and Industrial Action: Are we Ready Yet?”
2015 De Jure 336.593 See the case of Buthelezi v Labour for Africa (Pty) Ltd (1991) 12 ILJ 588 (IC) where an unconscionable
or outrageous demand led to an inference that there was no intention to negotiate.594 Twala “The Marikana Massacre: A Historical Overview of the Labour Unrest in the Mining Sector in
South Africa” 2012 Southern African Peace and Security Studies 63.
79
likelihood of resolving disputes if one party regards another as an enemy.595 This
shows that there is need for creation of conditions for peaceful union negotiations
legitimately representing employees in a transparent collective bargaining.596 It is
therefore encouraged that trade unions demonstrate social responsibility and act
responsibly and in good faith considering the interests of the economy.597
4.2.1.2.3 Duty to Bargain
Collective bargaining in South Africa takes place through a number of Bargaining
Councils whose primary function is to regulate relations between management and
workers by concluding collective agreements and settling disputes.598 The LRA does
not provide for the duty to bargain and it has been left to the Courts to determine
whether a dispute exist under the unfair labour practice.599 Despite the absence of the
duty to bargain in South Africa, the LRA imposes a duty on the employer to disclose
to a representative trade union all the relevant information that will enable the union to
engage effectively in collective bargaining.600 Furthermore, s 24 of the LRA, requires
every collective agreement to provide a procedure to resolve disputes about the
application or interpretation of the agreement. Also disclosure of information being an
essential element of good faith bargaining, the duty to bargain has indirectly found its
way into the South African industrial relations arena and as such facilitates dispute
resolution.601
595 It further shows that an adversarial type of bargaining rarely resolve disputes and this is evidenced bythe Marikana strike which eventually erupted and took horrific trends.
596 Twala 2012 Southern African Peace and Security Studies 66.597 Botha 2015 De Jure 336.598 Grogan 299.599 Holtzhausen et al 380. See also s 185 of the LRA which states that employees have a right not to be
unfairly dismissed or subjected to unfair labour practices.600 Section 16 (3) of the LRA.601 Holtzhausen et al 381 and s 64(2) of the LRA which describes forms of refusal to bargain.
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4.2.2 The Mediation Process
Rycroft602 defines mediation as a process by which a mediator assists disputants to
resolve the dispute between them by facilitating the dialogue. It is distinguished from
conciliation in that a mediator suggests alternatives and advices to both disputants.603
According to Faris604, conciliation is a less proactive form of intervention whilst a
mediator is more proactive in moving the parties to a mutually agreeable outcome.
The term mediation stems from a Latin expression mediare which means to occupy
the middle position thus acting as an intermediary suggesting possible solutions.605
Additionally, mediation becomes imperative in situations where disputing parties are
unable to continue negotiations and communicating to one another.606 Therefore in
these situations, a mediator serves to dilute tensions and elicit agreements from the
parties thus advancing progress towards settlement of disputes.607 However, contrary
to an arbitrator, a mediator acts only in advisory and conciliatory capacity, meaning he
has no decision making powers to impose settlement on either of the parties.608
Bendix argues that it is generally not easy to establish the effectiveness of mediation
process as it is impossible in many circumstances to establish whether a settlement
would have been achieved irrespective of the presence or absence of a mediator.609
He further alludes that mediation has been unsuccessful especially in disputes which
have reached a level of intensity and where matters of principle are at stake.610 Bendix
concludes by stipulating that a successful mediation depends on the commitment of
both parties towards a peaceful settlement.611 The researcher concurs with Bendix on
this note because at the end of this process, credit should not solely be bestowed upon
the mediator, but to parties themselves who have shown dedication and willingness to
602 Rycroft “Why is Mediation Not Taking Root in South Africa” 2009 Africa Centre for Dispute Settlement5.
603 Okharedia op cit note 3, 2.604 Faris “Deciphering the Language of Mediatory Intervention in South Africa” 2006 Comparative and
International Law Journal of South Africa 427.605 Haley 2015 Harvard Negotiation Law Review 67. See also Bendeman 2007 African Journal on Conflict
Resolution 142.606 Bendix 616. Also see Kwakwala A Critical Evaluation of Dispute Resolution Function of the CCMA
(MCom-thesis, SU, 2010) 23.607 Ibid.608 Bendix 617.609 Bendix 619.610 Ibid.611 Ibid.
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have their differences resolved. Furthermore, some critics to mediation allude that it
is merely a settlement process which deprives parties of their substantive legal rights
hence most disputants think that it is an unfair process.612
4.2.3 Statutory Conciliation Procedure
This process imply participation of a third party who may or may not be present during
that process.613 The conciliator can meet with the parties separately in a bid to resolve
disputes.614 If a conciliator is present, he or she will maintain a passive role although
he or she acts as a chairperson during the process.615 A conciliator plays a facilitative
role as he or she encourage resolution but forbidden to offer suggestions, personal
ideas and being judgemental.616 However, Bendix denotes that in practice, third
parties engaging in conciliation do mediate to some extent by devising methods that
bring disputants together hence distinction between conciliation and mediation is
somehow blurred.617
Conciliation process normally begins with statements by each party which specify the
remedy they seek. Since it amounts to a settlement negotiation, neither party is bound
by any admission or settlement made during the process.618 However a certificate of
whether or not a dispute has been settled must be used by the commissioner within
30 days and afterwards if dispute remain unresolved it will be referred for arbitration.619
If a dispute is about a matter of mutual interest concerning an essential service, then
within 7 days of the date on which Commission has received referral.620 A specific
commissioner attempts to resolve the dispute through conciliation and to that
commissioner’s terms of reference.621 Section 142 of the LRA, affords the
612 Haley 2015 Harvard Negotiation Law Review 68.613 Rossouw and Conradie A Practical Guide to Unfair Dismissal Law in South Africa (1999) 72. See also
Holtzhausen et al 425.614 Ibid.615 Rossouw and Conradie 72.616 Okharedia op cit note 4 at 2.617 Bendix 616.618 Grogan Dismissal 2ed (2014) 596.619 Sections 135 and 136 of LRA.620 Ibid.621 Holtzhausen et al 426. An essential service is a class of occupations that have been legislated by
government to have special restrictions in regard to labour actions such as striking. It is also establishedin terms of s 70 of the LRA.
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commissioner resolving the dispute to subpoena any person for questioning to help
resolve the dispute.622
From the discussion above in the text, the researcher observes that the distinction
between a conciliator and a mediator is merely academic, otherwise in practical
scenarios, these two perform similar if not identical tasks. This is why in some
jurisdictions like the United States, use these terms synonymously and referring to the
same person.
4.2.4 Resolution of Labour Disputes through Arbitration
This is a process whereby parties make presentations to a mutually selected third
party and commit themselves to abide by that person’s ruling acknowledging it as final
and binding.623 This stage takes place when the conciliating commissioner has
certified that a dispute remains unresolved, an aggrieved employee has 90 days to
refer a dispute to arbitration.624 In addition, arbitration distinguishes itself from
conciliation and mediation in that it does not allow the continuation of collective
bargaining.625 The commissioner is enjoined to deal with real disputes without the
expense of lawyers thereby keeping the proceedings quickly and informal.626 The
commissioner is required to issue an arbitration award with brief reasons within 14
days of the conclusion of the hearing unless the director of the CCMA granted
622 S 142 (1) of the LRA “A commissioner who has been appointed to attempt to resolve a dispute may-(a) subpoena for questioning any person who may be able to give information or whose presence atthe conciliation or arbitration proceedings may help to resolve the dispute”.
623 Holtzhausen et al 427. An arbitrator listens to and investigates the demands and counter-demands onboth sides, and decides on a final settlement. Whatever settlement the arbitrator imposes, becomesbinding on both parties.
624 S 136 (1) of the LRA “If this Act requires a dispute to be resolved through arbitration, the commissionmust appoint a commissioner to arbitrate that dispute, if-(a) a commissioner has issued a certificate stating that the dispute remains unresolved; and(b) within 90 days after the date on which that certificate was issued, any party to the dispute hasrequested that the dispute be resolved through arbitration. However, the Commission, on good causeshown, may condone a party's non-observance of that timeframe and allow a request for arbitrationfiled by the party after the expiry of the 90-day period”.
625 Bendix 619.626 S 138 (1) of the LRA “The commissioner may conduct the arbitration in a manner that the commissioner
considers appropriate in order to determine the dispute fairly and quickly, but must deal with thesubstantial merits of the dispute with the minimum of legal formalities”. See also Benjamin “Labour Lawbeyond Employment” in Le Roux and Rycroft (eds) Reinventing Labour Law: Reflecting on the First 15Years of the Labour Relations Act and Future Challenges (2012) 38.
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extension.627 However, the LRA does not prohibit disputants to bypass the procedures
laid down in the Act by referring particular disputes to private arbitration.628 Such
arbitrations will be conducted in terms of the Arbitration Act 42 of 1965 and the awards
although binding may be set aside on review if arbitrator exceeds his powers.629
If parties are engaged in an essential service and conciliation has failed, then within 7
days of the date which the commissioner has received referral, parties may consent
to the appointment of a specific commissioner to attempt resolving the dispute through
arbitration and to that commissioner’s terms of reference.630 Then within 14 days of
the conclusion of the arbitration proceedings the commissioner must issue a signed
arbitration award and provide reasons for the decision.631 However, an arbitration
award can be reviewed in the event of gross irregularity and the Labour Court may
determine the dispute in any manner appropriate or refer the matter back to the CCMA
for a new arbitration.632
4.2.5 Adjudication as a Form of Resolving Labour Disputes
This is a formal process which takes place in the context of a court, for example the
Labour Court and the Labour Appeal Court.633 Labour Court adjudication is a process
whereby the Judge adjudicates the matter and then determines the dispute between
the parties, although this process is subject to appeal or review in the Labour Appeal
Court.634 A Judge therefore decides who is right or wrong on the basis of evidence
placed before him and the outcome in form of a judgement.635 The problem with
adjudication is that labour lawyers and consultants have assumed a very important
position in the dispute resolution system of South Africa especially where individual
labour disputes are concerned.636 Their impact in labour dispute system has
627 Budeli et al 150.See also s 138 (7) and (8) of LRA.628 Grogan 602.629 S 33 of Act 42 of 1965.630 Holtzhausen et al 428.631 Holtzhausen et al 429.632 S 145(2) (a) LRA.633 Rossouw et al 73.634 Sharpe “Judicial Review of Arbitration Awards under the New South Africa Labour Relations Act of
1995” 2001 Case Western Reserve Journal of International Law 277.635 Sharpe 2001 Case Western Reserve Journal of International Law 280.636 Bendeman 2006 African Journal on Conflict Resolution 86.
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increased over the past few years despite legislative attempts to keep them out of the
process.
This is evidenced in the case of Law Society of the Northern Province v Minister of
Labour637 where Tuchten J declared CCMA rule 25(1)(c) of limiting legal
representation irrational. This further creates a gap of moving back to adversarialsm
whilst the purpose of dispute resolution is moving away from adversarialsm.638 It
appears courts are likely going to constitutionalise the right to legal representation at
CCMA arbitration proceedings,639 since the current legal system is welcoming lawyers
in dispute resolution process rather than denying them.640 It is undoubted however
that lawyers make a process legalistic and expensive. Furthermore, the arbitration
process has assumed a very legalistic and sophisticated character to resolve a
dispute.641 The involvement of legal representatives inevitably brought about
formalised and technical arguments and a strict observance of procedures.642 So the
intervention of lawyers raises questions of affordability and expeditiousness because
the CCMA was created to deal with indigent parties at no cost and without the need of
legal assistance.643
4.2.6 Resolving Labour Disputes through Conciliation-Arbitration (Con-arb)
In an attempt to save time often wasted if there is a deadlock in resolution of a dispute
during conciliation, arbitration sets in immediately on that same day with the same
conciliator but both parties should apply for that process before it can be used.644 If
any party objects, objection must be made in writing within 7 days before the set-
down.645 Con-arb can be either statutory or not and it is compulsory in matters relating
to dismissals for any reason related to probation and any unfair labour practice relating
637 2013 1 SA 468 (GNP).638 Ibid.639 Selala “Constitutionalising the Right Legal Representation at CCMA and Arbitration Proceedings: Law
Society of the Northern Provinces v Minister of Labour 2013 1 SA 468 (GNP)” 2013 PotchefstroomElectronic Law Journal 397.
640 Bendeman 2006 African Journal on Conflict Resolution 100.641 Van Zyl, Schlesinger and Brand CCMA Rules 2ed (2005) 233.642 Bendeman 2006 African Journal on Conflict Resolution 143.643 Ibid.644 S 191 (5A) LRA 66 of 1995.645 Grogan 597.
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to probation.646 Parties must be afforded 14 days written notice of a con-arb hearing647
and if a party intends to object to the con-arb, he must deliver a written objection to
the CCMA and to the other party at least 7 days prior the scheduled date.648 However,
dismissals and unfair labour practices relating to probation must be subjected to con-
arb and a party is not entitled to object to the process.649 Although con-arb seem to
increase pressure on parties to reach settlement, an arbitrator is prohibited to take
information shared in the conciliation into account when determining the matter in
arbitration.650
4.2.7 Pre-Dismissal and Advisory Arbitration
Firstly, pre-dismissal arbitration takes the place of a disciplinary hearing, and at the
request of an employer and with the employee’s consent, supply a commissioner to
conduct a pre-dismissal arbitration to establish whether the employee is guilt before
applying a sanction.651 Furthermore, pre-dismissal arbitration is voluntary and is not
done for free.652 However, on Advisory arbitration, a third party hears the parties’
cases and makes a non-binding determination.653 This process is a compulsory pre-
strike procedure in disputes over an alleged refusal to bargain.654
646 Holtzhausen et al 429. A commissioner may however arbitrate without the consent of the parties only ifthe dispute concerns the dismissal of the employee for any reason related to probation. Also in termsof s 191(5A) of the LRA, an arbitration hearing must immediately follow the conciliation proceedingsonce a certificate of non-resolution has been issued in disputes concerning dismissals or unfair labourpractices relating to probation.
647 CCMA Rule 17.648 CCMA Rule 17(2).649 Bosch et al 78.650 Bosch et al 79. See also CCMA Rule 16.651 S 188A of the LRA the heading of this section is now substituted by section 32(a) of Act 6 of 2014 from
Agreement for pre-dismissal arbitration to Inquiry by arbitrator. See also Du Plessis v Cape PeninsulaUniversity of Technology Case No C817/2014 para 5. In this case it was made clear the distinction of apre-dismissal arbitration and a disciplinary hearing.
652 S 188A (3) of the LRA reads: “The council, accredited agency or the Commission must appoint anarbitrator on receipt of-(a) payment by the employer of the prescribed fee; and(b) the employee's written consent to the inquiry”.
653 Van Zyl et al 234.654 S 64 (2) of the LRA reads: “If the issue in dispute concerns a refusal to bargain, an advisory award must
have been made in terms of section 135(3)(c) before notice is given in terms of subsection (1)(b) or (c).A refusal to bargain includes-(a) a refusal -(i) to recognise a trade union as a collective bargaining agent; or(ii) to agree to establish a bargaining council”.
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Pre-dismissal seems to be key as it requires an independent decision maker who is
acquainted with labour law to make informed and logical rulings. However, the
downside of pre-dismissal is that it is not for free, which means if disputants have
shallow pockets, it is unlikely to benefit from this type of resolution. However, advisory
arbitration seem to be prone to non-compliance due to its nature of non-binding
determination. Stubborn parties might disregard the determination and proceed with
strike action.
4.2.8 Refusal to Work Aimed at Resolving a Dispute
The balance of power in employment relationships favours employers over
employees, so strikes are used as tools by employees to bring some sought of
balance.655 Botha argues that refusal to work grants employees a significant voice
regarding what goes on in the workplace.656 Estreicher657 opines that “without the right
to strike, collective bargaining becomes collective begging.” Chicktay658 on the other
hand, advances that a strike action enables employees retain their dignity by showing
the employer that they are “not just cogs in a machine”. In addition, the Constitution
entrenches the right of workers to go on strike.659 This right to strike is not only
recognised domestically or nationally, but also by international law, as fundamental to
the protection of workers’ rights.660 A strike is defined in the LRA as:
“The partial or complete concerted refusal to work, or the retardation of work, bypersons who are or have been employed by the same employer or by differentemployers, for the purpose of remedying a grievance or resolving a dispute in respectof any matter of mutual interest between employer and employees, and every
655 Manamela and Budeli “Employees' Right to Strike and Violence in South Africa” 2013 Comparative andInternational Law Journal of South Africa 323. See also Myburgh “The Failure to Obey InterdictsProhibiting Strikes and Violence: The Implications for Labour Law and the Rule of Law” 2013Contemporary Labour Law 1.
656 Botha 2015 De Jure 332.657 Estreicher “Collective Bargaining or ‘Collective Begging’? Reflections on Antistrikebreaker Legislation”
1994 Michigan Law Review 578.658 Chicktay “Placing the Right to Strike within a Human Rights Framework” 2006 Obiter 348.659 S 23 (2) of the Constitution of the Republic of South Africa 1996.660 Gericke “Revisiting the Liability of Trade Unions and/or Their Members during Strikes: Lessons to be
Learnt from Case Law” 2012 THRHR 567. See also the International Convention on Economic, Socialand Cultural Rights of 1996, the European Social Charter of 1961, and the Additional Protocol to theAmerican Convention on Human Rights in the Area of Economic, Social and Cultural Rights of 1988.
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reference to ‘work’ in this definition includes overtime work, whether it is voluntary orcompulsory.”661
To constitute a strike, the action of refusing to work must be performed by employees
acting together as a group, with the common purpose of remedying a grievance.662
This shows that a strike cannot be performed by a single employee, there should be
a group of employees acting in concert.663 In SASTAWU v Karras t/a Floraline,664 the
employees left the employer’s premises, alleging that they had been threatened with
a fire arm by the employer’s domestic worker’s boyfriend. The question was whether
the conduct of the employees in leaving the place of employment constituted a strike.
The Court found that the employees’ refusal to work fell short of qualifying as a strike
in terms of the LRA because it was not for the purpose of remedying a grievance or
resolving a dispute regarding a matter of mutual interest between the parties.665
More so, In FAWU v Rainbow Chicken Farms,666 all Muslims, were employed based
on their religious background to ensure that the meat was processed as required by
the Muslim faith. The employees however refused to work on a Muslim holiday, then
their employer alleged that their conduct amounted to a strike. The Court held that
even though their actions were collective, the individual applicants did not conduct
themselves to remedy a grievance or to resolve a dispute. This shows that the
concerted refusal to work, must be for remedying a grievance or resolving a dispute in
respect of a matter of mutual interest between the employer and employees or trade
union.667 Conversely, if the refusal to work is not aimed at remedying a grievance or
resolving a dispute between the employer and employees, the conduct of the
employees cannot be regarded a strike as defined in the LRA.668 However, strikes
instead of resolving a dispute, they tend to evolve in ferocious and violent strikes.
661 S 213 of the LRA.662 Tenza “An Investigation into the Causes of Violent Strikes in South Africa: Some Lessons from Foreign
Law and Possible Solutions” 2015 Law, Democracy and Development 213. See also the case of Gobilev BP Southern Africa (Pty) Ltd (1999) 20 ILJ 2027 (LAC), where the employees refusal to work overtimeand on public holidays was not accompanied by any express demand. The Labour Appeal Courtinquired into the purpose of their action in order to decide whether their refusal to work constituted astrike. The Court held that the employees’ aim was to make their employer accede to their perceptionof what their contractual obligations should be. Therefore, their actions constituted a strike.
663 Selala “The Right to Strike and the Future of Collective Bargaining in South Africa: An ExploratoryAnalysis” 2014 International Journal of Social Sciences 115-118.
664 SASTAWU v Karras t/a Floraline (1999) 10 BLLR 1097 (LC).665 Karras t/a Floraline para 29.666 FAWU v Rainbow Chicken Farms (2000) 21 ILJ 615 (LC).667 Tenza 2015 Law, Democracy and Development 214.668 See s 213 of the LRA.
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South African employees expressed the sentiment that violence is necessary to
achieve their goals since “violence makes the bosses hear well”.669
Tenza670 argues that the current bargaining system is a significant contributor to
violent strike action. On a similar note, Tenza alludes that the absence of a ballot
requirement prior to strike action fails to democratise industrial relations in South
Africa.671 Tenza further avows that the replacement of labour by the employer of
employees who are on strike aggravates the entire situation.672 Because instead of
fixing or meeting the demands, employers have used replacement labour whenever
they feel that their business is threatened. In SATAWU v Ram Transport South Africa
(Pty) Ltd673, employees participating in a protected strike, threatened replaced workers
with sticks and forced them to vacate the workplace. COSATU even proposed that
limitation should be put on hiring replacement workers.674 There is therefore no doubt
that the use of replacement labour triggers violence, and delay labour dispute
settlements.675
For the purposes of this study, the researcher does not dwell much on the causes of
violent strikes as the primary aim of this study is to identify loopholes within the dispute
settlement structure that impede speedy resolution of labour disputes.
669 Calitz 2016 South African Mercantile Law Journal 440.670 Tenza 2015 Law, Democracy and Development 214.671 To assess whether going on strike enjoys the majority support of workers in the workplace, the union
needs to conduct a ballot.672 It is not only that the contact between replacement workers and striking employees becomes a concern
during a strike, but that the contact between striking employees and non-striking employees of the sameemployer also results to violent clashes. See a recent case of NUMSA obo Members v Elements SixProductions (Pty) Ltd [2017] ZALCJHB 35.
673 SATAWU v Ram Transport South Africa (Pty) Ltd [2014] ZALCJHB 471.674 Calitz 2016 South African Mercantile Law Journal 440.675 The fact that employers are statutorily allowed in terms of s 76 of the LRA to maintain production at
reasonable levels by taking into employment the services of replacement labour, may seem to be painfulto employees on strike.
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4.3 Case Law on Labour Dispute Resolution
4.3.1 CUSA V Tao Ying Metal Industries CCT 40/07 [2008] ZACC15
In this case, the employer Tao Ying Metal Industries conducts a business in a town
which previously fell under the apartheid legal order.676 Prior to the enactment of the
1995 Labour Relations Act (1995 LRA),677 the legal framework was regulated by the
1956 Labour Relations Act (1956 LRA),678 and in terms of s 51 of the 1956 LRA,
authority to grant exemptions was conferred from industrial council agreements.679 As
a consequence, the employer generally offered its workers wages and conditions of
employment which were less favourable than those required by the bargaining council
agreements established in terms of 1995 LRA.680 Schedule 7 of the 1995 LRA
provides for the transition of old to the new scheme.681 Therefore the industrial council
agreement that was registered under the 1956 LRA is deemed to be a bargaining
council agreement under 1995 LRA.682 So an industrial agreement that was binding
prior to the commencement of the 1995 LRA remains in force for a period of 18 months
after the commencement of the 1995 LRA or until the expiry of that agreement
whichever occurred first.683
The workers claimed that the employer is obliged to comply with the new main
agreement whereas the employer maintained that the exemptions granted to it under
the industrial council main agreement still applied to and was operational under the
new main agreement.684 However, workers took the view that the exemptions upon
which the employer was relying had expired when the industrial council main
agreement was terminated with the coming into effect of the new bargaining council
main agreement.685 The workers further maintained that the exemptions relied upon
676 CUSA V Tao Ying Metal Industries (CCT 40/07) [2008] ZACC15 para 15 (hereinafter referred to as TaoYing Metal Industries).
677 Act 66 of 1995.678 Act 28 of 1956.679 Tao Ying Metal Industries para 7.680 Tao Ying Metal Industries para 15.681 Tao Ying Metal Industries para 8.682 Ibid.683 Ibid.684 Tao Ying Metal Industries para 21.685 Ibid.
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by the employer were invalid because they were granted without prior consultation
with the workers.686
Since this case concerns the role of the CCMA commissioner in resolving labour
disputes and that of the courts in overseeing the arbitration process,687 the
commissioner found that the exemptions relied upon by the employer expired when
the industrial council main agreement terminated.688 The commissioner further held
that the industrial council main agreement terminated on 14 April 1998, this being the
date when the bargaining council main agreement came into effect.689 The
commissioner accordingly issued an award ordering the employer to comply with
applicable bargaining council agreement and pay its workers favourable wages and
conditions of employment.690
The arbitration award was a bitter pill to swallow for the employers and lodged an
application for review in the labour court. However, the application for review was late
as it was not brought within the period of six weeks contemplated in s 145 of 1995
LRA.691 The consequence was the dismissal of the application for review and the
employer appealed to the Labour Appeal Court.692 However, the Appeal Court held
that on proper interpretation of the provisions of the licences of exemption, the
exemptions were operational only for the duration of the industrial council main
agreement.693 It accordingly concluded unanimously that the exemptions relied upon
by the employer expired when the industrial agreement terminated.694
The matter was taken to the Supreme Court of Appeal where the majority held that the
exemptions had not expired.695 For the first time the ruling was in favour of the
employers. It also found that what was in dispute between the parties in the arbitration
proceedings was whether the exemptions relied upon by the employer had been
686 Ibid.687 Tao Ying Metal Industries para 1.688 Tao Ying Metal Industries para 27.689 Ibid.690 Tao Ying Metal Industries para 1.691 Any party to a dispute who alleges a defect in any arbitration proceedings under the auspices of the
Commission may apply to the Labour Court for an order setting aside the arbitration award-(a) withinsix weeks of the date that the award was served on the applicant, unless the alleged defect involvescorruption; or (b) if the alleged defect involves corruption, within six weeks of the date that the applicantdiscovers the corruption.
692 Tao Ying Metal Industries para 30.693 Tao Ying Metal Industries para 32.694 Ibid.695 Tao Ying Metal Industries para 37.
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validly issued.696 It further held that the commissioner had no jurisdiction to decide
whether the conduct of the bargaining council was invalid for failure to consult the
workers or their representatives.697 However Musi AJA, like Jafta JA in a dissenting
judgment found that the real dispute before the commissioner was the enforcement of
the bargaining council agreement.698 The Court held that the question of the validity
of the exemptions which was raised by the union did not detract from the real
dispute.699 The Court further found that the question of the validity of the exemptions
and the jurisdiction to decide this question had not been raised by the employer in its
review application, but was raised for the first time in the Supreme Court of Appeal
and it was too late.700
This matter finally reached the highest court of South Africa which is the Constitutional
Court. Workers were in disagreement with the decision of the Supreme Court of
Appeal and contented that to raise a new ground of review seven years after the
dispute had arisen detracts from the object and aims of the 1995 LRA, which is to have
labour disputes resolved expeditiously.701 Ngcobo J was of the view that the issues
raised in this case were matters of public interest.702 He went on to mention that this
case concerns the enforcement of a bargaining council agreement which sets out
minimum wages and other conditions of employment which requires the application of
the 1995 LRA provisions.703 Further, the right to engage in collective bargaining and
to enforce the provisions of collective agreements is an important right for the workers
who are generally powerless to bargain individually over wages and conditions of
employment.704
The enforcement of collective agreements is vital to industrial peace and it is crucial
to the achievement of fair labour practices which is constitutionally entrenched.705
Furthermore, the role of commissioners in resolving labour disputes is set out in s 138
696 Ibid.697 Ibid.698 Tao Ying Metal Industries para 39.699 Ibid.700 Ibid.701 Tao Ying Metal Industries para 43.702 Tao Ying Metal Industries para 55.703 Ibid.704 Tao Ying Metal Industries para 56.705 S 23 of the Constitution of South Africa 1996.
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(1) of the 1995 LRA.706 This LRA introduced a simple, quick, cheap and informal
approach to the adjudication of labour disputes.707 These disputes by their very nature
require speedy resolution and any delay in resolving a labour dispute could be
detrimental not only to the workers who may without a source of income pending the
resolution of the dispute, but it may in the long run have detrimental effect on the
employer who may have to reinstate workers after a number of years.708 In addition,
the absence of appeal from arbitral awards was intended to speed up the process of
resolving labour disputes and free it from the legalism that accompanies other formal
judicial proceedings.709
Therefore the LRA permits commissioners to conduct the arbitration proceeding in a
manner that the commissioner deems appropriate.710 But in doing so commissioners
must be guided by at least three considerations which are firstly, resolving the real
dispute, secondly, doing it expeditiously, thirdly, acting fairly to all parties as the LRA
enjoins them to do so.711 Moreover, in deciding what a real dispute between parties
is, a commissioner is not necessarily bound by what the legal representatives say the
dispute is.712 Also, a litigant may not on appeal raise a new ground of review because
to allow such, will thwart the objectives of the LRA which are to resolve disputes quickly
and expeditiously.713 Furthermore, the characterisation of a dispute by the parties is
not necessarily conclusive as to the nature of the dispute.714 It is rather necessary for
a commissioner to look at the substance of the dispute in order to ascertain the real
dispute between the parties.715
Ngcobo J found the contention by workers that the commissioner failed to apply her
mind to the question whether exemptions had expired to be irrational and baseless.716
The exemptions of 1956 could not have been intended to have an unlimited lifespan
which goes beyond the lifespan of the industrial council agreement in respect of which
706 The commissioner may conduct the arbitration in a manner that the commissioner considers appropriatein order to determine the dispute fairly and quickly, but must deal with the substantial merits of thedispute with the minimum of legal formalities.
707 Tao Ying Metal Industries para 63.708 Ibid.709 Tao Ying Metal Industries para 64.710 S 138 (1) of LRA.711 Tao Ying Metal Industries para 65.712 Tao Ying Metal Industries para 66.713 Tao Ying Metal Industries para 67.714 Tao Ying Metal Industries para 71.715 Ibid.716 Tao Ying Metal Industries para 77.
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they were issued.717 So the period of exemption in this case must be construed in the
light of this legislative intention.718 Therefore the Constitutional Court held that the
conclusion by the commissioner that the exemption had expired at the time the dispute
arose must be upheld.719 Furthermore, her conclusion that the employer was not
exempted from the wage provisions of the bargaining council main agreement at the
time the dispute arose was also upheld.720 The order of the Labour Appeal Court was
therefore restored.
This case shows that arbitration proceedings must be conducted with minimum legal
formalities and should not imitate the process of courts of law. There is nothing wrong
with expedited processes and keeping costs low however, commissioners need to
appreciate the distinction between actively encouraging expedition and over-zealously
speeding up the resolution of disputes, because the latter results in procedural
unfairness.721 Also, the CCMA and its commissioners must be careful to apply their
minds to ensure a proper balance between the cost-effective use of CCMA’s resources
and the need to have disputes determined in a manner that is fair to both parties
because failure to do so leads to the intervention by the courts.722 Therefore Ngcobo’s
judgment emphasised the importance of ADR processes and the CCMA in particular
in resolving workplace disputes and these structures must be respected for informally
and speedily resolving such disputes.
4.3.2 Mashego v Cellier JR 2721/13 [2015] ZALCJHB 415
The facts of the case are that the employee for South African Air-ways (SAA) was
dismissed in April 2013 for misconduct comprising unauthorised absence and
disobedience.723 He then referred a dispute of unfair dismissal to the CCMA but was
however unresolved at conciliation and further referred to arbitration.724 The union
official suggested that the employee’s dismissal was based on his affiliation to the
717 Tao Ying Metal Industries para 101.718 Ibid.719 Tao Ying Metal Industries para 104720 Ibid.721 Steenkamp et al 2012 Acta Juridica 129.722 Steenkamp et al 2012 Acta Juridica 130.723 Mashego v Cellier JR 2721/13 [2015] ZALCJHB 415 para 4 (hereinafter referred to as Mashego).724 Mashego para 5.
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National Transport Movement (NTM) which culminated in the commissioner striking
off the matter from the roll on the basis of CCMA lacking jurisdiction.725 So the reason
for delay is partly attributed to the confusion created by the trade union representative
who erroneously suggested that the employee was dismissed because of his affiliation
to trade union membership.726 However, the employee made it clear that the cause
of action was dismissal for misconduct which were also the reasons given by the
employer and not that of affiliation.727 Further delay is attributed to the commissioner,
who upon hearing arbitration, decided that the CCMA lacked jurisdiction on issues of
affiliation which were automatically unfair dismissals.728 When the employee tried to
re-enrol the unfair dismissal dispute for arbitration, the commissioner ruled that it was
re judicata.729
The SAA took the dispute in Labour Court incurring further expenses and forcing a
poor employee to do the same.730 The employee had to bear the cost of legal
representation and had to apply to have that ruling reviewed and set aside. However
if the commissioner had applied his mind, the real dispute was dismissal for
misconduct which the CCMA had jurisdiction.731 The application for re-enrolment was
not opposed by SAA, nevertheless, the CCMA refused to re-enrol the unfair dismissal
dispute.732 Therefore the employee seeks to have the ruling reviewed and set aside
in terms of the LRA.733
In this case, the applicant is dismissed for committing misconduct and wants the
matter to be resolved in the manner the LRA envisaged. 734 However, two and half
years passed and the matter was still unresolved. The applicant incurred exorbitant
legal fees and could not achieve this goal of having labour disputes resolved
timeously.735 Steenkamp J also commented that this case should have never served
before the Labour Court, and the fact that it proceeded to that stage goes against the
725 Ibid.726 Mashego para 2.727 Ibid.728 Ibid.729 Res judicata means that a matter has been decided by a competent tribunal or court and it may not be
pursued by the same parties further.730 Mashego para 3.731 Ibid.732 Mashego para 9.733 S 158 (1) (g) of the LRA.734 Preamble to the LRA suggests that labour disputes should be resolved in a simple, cheap and quick
manner.735 Mashego para 1.
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grain of the spirit, purport and object of the LRA.736 In order to promote the objects of
the LRA, effective labour dispute resolution should be speedy, and both time and legal
costs should be minimised as the Constitutional Court recognised this concept in the
case of National Education Health and Allied Workers Union v UCT737 :
“By their nature labour disputes must be resolved expeditiously and brought to finalityso that the parties can organise their affairs accordingly. They affect our economy andlabour peace. It is in the interest of the public that labour disputes be resolvedspeedily…”
The LRA adopted a simple, quick, cheap and non-legalistic approach to the arbitration
of unfair dismissals yet none of these objects have been met in this case.738 The
Labour Court ruled that the arbitrator committed an error of law when he ruled that the
dispute was res judicata.739 That led to an unreasonable result depriving the employee
of having the real dispute arbitrated before the CCMA. It was further concluded that
the real dispute must be remitted to the CCMA for arbitration before the
commissioner.740
4.3.3 Makuse v Commission for Conciliation, Mediation and Arbitration [2015]
ZALCJHB 265
Makuse the applicant launched a review in terms of s 145 but she did so eight months
outside of the six week deadline prescribed.741 She then now seeks condonation.742
Resolution of labour disputes takes place within a system designed to ensure the
expeditious resolution of labour disputes and this being the primary aims of the LRA.743
736 Ibid.737 National Education Health and Allied Workers Union v UCT para 31.738 Du Toit, Woolfrey, Bosch, Godfrey, Christie, Cooper, Giles Labour Relations Law: A Comprehensive
Guide 6ed (2015) 117.739 Mashego para 8.740 Ibid.741 See s 145 (1) (a) of the LRA.742 Makuse v Commission for Conciliation, Mediation and Arbitration [2015] ZALCJHB 265 para 2
(hereinafter referred to as Makuse).743 S 1 (d) (iv) of the LRA. The delay in the resolution of labour dispute is one of the problems and pitfalls
which the LRA seeks to remedy. This was also highlighted in the case of Billiton Aluminium South AfricaLtd t/a Hillside Aluminium v Khanyile [2010] 5 BLLR 465 (CC) para 45.
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The implications of delay were also explained by Ngcobo J in CUSA case.744 This
court also considered the principle of finality as alluded to in the case of Van Wyk:745
“…The principle of finality in litigation is intended to allow parties to get on with theirlives. After an inordinate delay, a litigant is entitled to assume that the losing party hasaccepted the finality of the order and does not intend to pursue the matter further. Togrant condonation after such inordinate delay and in the absence of a reasonableexplanation would undermine this principle and cannot be in the interests of justice”
So in an attempt to combat delay, legislature found it worthy in the 2014 Amendments
to the LRA to pass three amendments to s 145 which are specifically aimed at
expediting the prosecution of review applications.746 The first is that an applicant on
review must apply for a hearing date within 6 months of launching a review.747 The
second is that judgements in review applications must be delivered as soon as
reasonably possible.748 The third is that the institution of a review does not suspend
the operation of the award unless the applicant furnishes security to the satisfaction of
the court.749
In the case of Colett,750 Musi AJA unanimously held that without a reasonable and
acceptable explanation for the delay, the prospects of success are immaterial, and
without good prospects of success, no matter how good the explanation for delay, an
application for condonation should be refused.751 So given that the applicant (Makuse)
has not provided a plausible explanation for delay, is guilty of flagrant and gross failure
to comply with the prescribed time period.752 Applicant’s application being 8 months
late, her prospects of success are immaterial and thus not be considered hence
condonation dismissed with costs.753
744 CUSA V Tao Ying Metal Industries [2009] 1 BLLR (CC).745 Van Wyk v Unitas Hospital 2008 (2) SA 472 (CC).746 Labour Relations Amendment Act 6 of 2014 which took effect on 1 January 2015.747 S 145 (5) of the LRA.748 S 145 (6) of the LRA.749 S 145 (7) of the LRA.750 Colett v CCMA 2014 6 BLLR 523 (LAC).751 Makuse para 20.752 Makuse para 21.753 Ibid.
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4.4 Remedies for Unfair Dismissal and Unfair Labour Practice s 193
The LRA provides remedies that can be offered to employees whose dismissals are
found to be unfair and theses remedies are reinstatement, re-employment and
compensation.754 Reinstatement is one of the primary relief afforded to the employee
if dismissal is found to be unfair unless the affected employee does not wish to
continue working for that employer especially when the relationship had become
intolerable and is no longer practical for the employee to return to the previous
position.755 On the other hand, if dismissal is procedurally unfair only, compensation
becomes an appropriate remedy in these circumstances.756 So setting clearer
parameters for the exercise of discretion by arbitrators when electing between
reinstatement and compensation and in determining the amount of compensation,
would provide appropriate certainty in awarding legal remedies.757 Different courts
reached antagonistic conclusions regarding what reinstatement entails, when it is
appropriate to order it, and what consequences attached to making an order of back-
pay.758
The recent ambiguity regarding the interpretation to be offered to the relevant
legislative provisions of s 193 impacts negatively on one of the most fundamental aims
of the LRA which is to provide access to social justice to wronged employees.759
Currently as matters stand, employees in labour matters have no guarantee even if
they succeed their claims, they will be granted a meaningful and appropriate
remedy.760 The decision of SBV Services (Pty) Ltd v CCMA,761 attempts to bring clarity
regarding the interpretation that should be afforded to s 193 in cases of substantively
754 S 193 and of the LRA. See also Grogan 611.755 S 193 (2) of the LRA reads “The Labour Court or the arbitrator must require the employer to reinstate
or re-employ the employee unless-(a) the employee does not wish to be reinstated or re-employed;(b) the circumstances surrounding the dismissal are such that a continued employment relationshipwould be intolerable;(c) it is not reasonably practicable for the employer to reinstate or re-employ the employee; or(d) the dismissal is unfair only because the employer did not follow a fair procedure”.
756 Geldenhuys 2016 Potchefstroom Electronic Law Journal 2. See also Grogan 621. And also the case ofMzeku v Volkswagen SA (Pty) Ltd (2001) 22 ILJ 1575 (LAC).
757 Geldenhuys 2016 Potchefstroom Electronic Law Journal 3.758 Themba v Mintroad sawmills 2015 2 BLLR 174 (LC) and Myers v National Commissioner of the SAP
Service 2013 JOL 30564 (SCA).759 Geldenhuys 2016 Potchefstroom Electronic Law Journal 3.760 Ibid.761 SBV Services (Pty) Ltd v CCMA 2013 34 ILJ 996 (LC) (hereinafter referred to as the SBV Services).
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unfair dismissals.762 However a closer scrutiny into how the decision was reached
and the impact of the court’s findings, exposes the fact that the decision does the
opposite of providing legal certainty.763
The facts of SBV Services,764 are that the employee had been dismissed after the
company suffered significant loss attributed to gross negligence in the employee’s
performance of his duties.765 The commissioner however found dismissal to be
substantively unfair.766 The commissioner was required to decide the appropriate
remedy in these circumstances.767 The commissioner awarded an amount of nine
months remuneration as compensation as the employee felt that reinstatement was
impracticable as his good reputation was infringed due to serious allegations by
employer.768 The employer then lodged an application for review requesting the
Labour Court to reverse the finding that dismissal had been substantively unfair as
well as the compensation award made.769 The Labour Court was satisfied with the
commissioner’s conclusion that dismissal was substantively unfair however the
remedy offered of 9 months remuneration as compensation was set aside.770
The court was not satisfied with the manner in which the commissioner expressed
different remedies to the employee, particularly that the reinstatement order could be
made retrospectively or with back-pay, he would have opted to be reinstated instead
of electing compensation.771 The CCMA commissioner had in the court’s view
misunderstood the purpose of compensation as a remedy under the LRA because he
failed to interject after hearing the reasons proffered by the employee for choosing
compensation.772 The reasons provided for choosing compensation in the Labour
Court opinion, exposed misconception that the employer was under as he thought that
compensation was due to him based on the injury to reputation culminating from
serious allegations made by the employer.773 The court found that no claims are
762 Geldenhuys 2016 Potchefstroom Electronic Law Journal 3.763 Geldenhuys 2016 Potchefstroom Electronic Law Journal 4.764 2013 34 ILJ 996 (LC).765 SBV Services para 4.766 Ibid.767 Ibid.768 SBV Services para 32 and 48(b).769 Ibid.770 SBV Services para 3 and 48(b).771 Geldenhuys 2016 Potchefstroom Electronic Law Journal 5.772 Ibid.773 SBV Services para 41.
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possible in respect of non-patrimonial loss if compensation was preferred as a remedy,
so the matter was referred back to the CCMA for a proper determination.774
The crafters of the LRA intended that employees who have been unfairly dismissed,
to be reinstated thus giving back an employee his or her job a first prize, whereas
compensation was intended to be an exceptional remedy.775 However reinstatement
is an appropriate recourse only if labour disputes are resolved expeditiously, which is
often not the case in South Africa.776 This culminates in reinstatement as primary
remedy, not strictly enforced by the labour forums.777 Also the animosity resulting from
labour proceedings often leads to deterioration of workplace relationship, which would
render it unsuitable to reinstate or re-employ the employee in the workplace.778 This
is why compensation as a remedy was intended to provide a degree of solace for
unfairly dismissed employees when it would be unreasonable to reinstate or re-employ
them.779 Although the Labour Court in SBV Services, held that labour forums should
give preference to reinstatement as a primary remedy instead of compensation,
electing a proper remedy is crucial for a speedy resolution of disputes. This is so
because if an employee is reinstated whilst workplace environments are intolerable,
that same employee could refer another dispute of constructive dismissal and the
cycle of disputes ensues.780
Also enforcing a general duty on CCMA arbitrators to explain these remedies before
being able to make a binding and enforceable award would most probably fall outside
the scope of capacity limitations and the CCMA’s aim of resolving labour disputes in
a non-formalistic way.781 The referral of CCMA awards on review and the resultant
delays in the resolution of labour disputes are issues of concern.782 One of the aims
774 Ibid.775 S 193 (2) of the LRA.776 Sidumo v Rustenburg Platinum Mines Ltd 2007 28 ILJ 2405 (CC) para 44.777 Kroukam v South Africa Airlink 2005 ILJ 2153 (LAC) para 116. The concern expressed in the minority
judgment of Kroukam is that employees may be tempted to gain greater compensation than thatpermited by the Act by seeking orders of full retrospective reinstatement, then immediately resigningremains a consideration. See also NUMSA v Edelweiss Glass and Aluminium (Pty) Ltd [2009] 11 BLLR1083 (LC) where the court shaped its order to avoid the profiteering of dismissed employees whoapparently did not intend to resume work with the former employer.
778 Geldenhuys 2016 Potchefstroom Electronic Law Journal 9.779 Ibid.780 Geldenhuys 2016 Potchefstroom Electronic Law Journal 10.781 S 143 (1) of the LRA. If proper explanation has to be provided, it would seem as if absence of such
explanation would render an award unbinding and susceptible to review.782 Geldenhuys 2016 Potchefstroom Electronic Law Journal 12.
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of the Labour Relations Amendment Act (LRAA)783 is to ensure that delays in the
resolution of labour disputes are restricted.784 Employers who take matters on review
are also required to pay an amount in security to suspend the arbitration award for the
time it takes to finalise the review.785 So obviously all these measures have been
implemented to address the fact that taking CCMA awards on review has become a
common place.786
4.4.1 Ethekwini Municipality v Hadebe (DA17/14) [2016] ZALAC 14
This is an appeal by the Municipality against the order of reinstatement of first
respondent who was found to be substantively unfairly dismissed.787 The first
respondent Ms Hadebe was alleged to have failed to conduct herself with honesty,
integrity and perform tasks diligently.788 However Ms Hadebe raised the issue of
consistency by the Municipality in disciplining its employees.789 She pointed out that
whereas the internal audit report also implicated another employee, she was only the
one charged with misconduct whilst the other culprit got promoted to the position she
(Hadebe) previously had.790 During arbitration proceedings, the arbitrator considered
the collective agreement concluded between the Municipality and its employees which
enjoins the municipality to act consistently and fairly with regard to matters of
discipline.791 As a result the arbitrator found Ms Hadebe’s dismissal substantively
unfair on the basis of this inconsistency.792
This brings us to the issue of appropriate remedy that Ms Hadebe is entitled to in terms
of s193 of the LRA.793 The arbitrator refused an order of reinstatement because he
considered certain factors like the nature of the offence, trust relationship being broken
783 LRA 6 of 2014.784 S 145 sets new time limit in which review applications must be heard in the labour court and for handing
down judgement in review.785 S 157 Act 6 of 2014.786 Geldenhuys 2016 Potchefstroom Electronic Law Journal 13.787 Ethekwini Municipality v Hadebe (DA17/14) [2016] ZALAC 14 para 1 (hereinafter referred to as
Hadebe).788 Hadebe para 7.789 Hadebe para 8.790 Ibid.791 Hadebe para 11.792 Hadebe para 12.793 S193 of the LRA.
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down and her lack of remorse during the proceedings.794 Therefore the arbitrator
granted a relief of compensation which was equivalent to nine months
remuneration.795 Ms Hadebe then approached the Labour Court in terms of s145
seeking to set aside the award.796 She contended that the arbitrator was obliged to
order reinstatement once he found that dismissal was substantively unfair, unless any
of the factors referred to in s193(2) were applicable of which the Municipality did not
tender evidence to show that the trust relationship had irretrievably broken down.797
The Labour Court reviewed and set aside the order made by the arbitrator and
replaced it with reinstatement and compensation.798 However in the Labour Appeal
Court, Makgoka AJA ruled that the conclusion reached by the arbitrator is reasonable
and therefore not reviewable.799 He went on to rule that the Labour Court misdirected
itself in ordering reinstatement and compensation in the same relief because in Equity
Aviation Services800 case, it was held that remedies in s 193(1) are in the alternative
and mutually exclusive which means they do not run concurrently.801
4.4.2 Monare v South African Tourism and CCMA [2016] 2 BLLR 115 (LAC)
In this case the appellant was charged with misconduct and referred the dispute about
his dismissal to the CCMA which in terms of the LRA has no extraterritorial
jurisdiction.802 The parties did not raise an issue concerning jurisdiction of the CCMA,
it only became an issue after argument in the labour court in respect of the review of
the CCMA award.803 The facts suggest that the appellant was employed in the London
794 Hadebe para 13.795 Ibid.796 S145 of the LRA.797 Hadebe para 14.798 Hadebe para 19.799 Hadebe para 29.800 Equity Aviation Services v CCMA (2008) BLLR 1129 (CC) para 42.801 S 193 (1) of the LRA states that “If the Labour Court or an arbitrator appointed in terms of this Act finds
that a dismissal is unfair, the Court or the arbitrator may -(a) order the employer to reinstate the employee from any date not earlier than the date of dismissal;(b) order the employer to re-employ the employee, either in the work in which the employee wasemployed before the dismissal or in other reasonably suitable work on any terms and from any date notearlier than the date of dismissal; or(c) order the employer to pay compensation to the employee”.
802 Monare v South African Tourism and CCMA (JA45/14) [2015] ZALAC 47 para 2 (hereinafter referred toas Monare).
803 Ibid.
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office of the first respondent in terms of a fixed term contract for three years and was
however dismissed in the first year of employment.804 In Astral Operations Ltd v
Parry805, where an employee was employed and dismissed by a subsidiary of the
company relocated to Malawi.806 The matter reached the labour court and the
company raised a point that the labour court lacked jurisdiction and the court came to
the conclusion that territorial application of the LRA to the dispute in question, had to
be determined according to the locality of the undertaking carried out by the company
in which the employee was employed.807
Therefore the LRA did not apply to the company’s operation in Malawi hence no
jurisdiction.808 The company contended that since the applicant’s employment
contract was concluded overseas, he was obliged to work overseas for an agreed term
with no right to return in South Africa.809 Also having committed acts of misconduct of
misconduct in London, disciplinary hearing being held there and dismissal following,
the LRA has no territorial application and the CCMA should not entertain such
disputes.810 It was disputed that in Astral811, the employer’s Malawian subsidiary
where the employee worked, was separate and divorced from the employer’s South
African undertaking.812 However, in this case, it is doubtful whether London office was
an undertaking separate from the Republic.813 It was considered that the fact that the
office is located in London, does not make it different.814 It was rather linked to the
first respondent.815 Therefore, the labour court erred in reviewing and setting aside
the CCMA award on the ground that the CCMA lacked jurisdiction.
Conciliation was unsuccessful and the matter was brought before arbitration where
the appellant contended that his dismissal was both procedurally and substantively
unfair hence a claim for reinstatement.816 Commissioner however found that the
appellant’s dismissal by first respondent was procedurally fair but substantively unfair,
804 Ibid.805 Astral Operations Ltd v Parry (2008) 29ILJ 2668 (LAC)806 Monare para 13.807 Monare para 14.808 Monare para 15.809 Monare para 16.810 Ibid.811 (2008) 29ILJ 2668 (LAC)812 Monare para 35.813 Monare para 36.814 Monare para 41.815 Ibid.816 Monare para 8.
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then an order of reinstatement and back pay was ordered.817 The first respondent
attacked the sanction imposed by the commissioner, arguing that the appellant was
dishonest and fraudulent and this resulted in the breakdown of the relationship of trust
between the parties.818 In these circumstances, it was argued that the Commissioner
ought not to have ordered reinstatement and his decision was one which a reasonable
decision maker would not have made.819
4.4.3 Sibeko v Xstrata Coal South Africa 2016 37 ILJ 1230 (LC)
This is an application for review brought in terms of s145 and the applicant’s grounds
of review are that instead of retrospectively reinstating the applicant following his
finding that the dismissal was substantively unfair, the commissioner came to a
decision that no reasonable decision maker would have reached, namely awarding
compensation.820 In terms of the LRA, reinstatement is a primary remedy in case of
the dismissal that is found to be substantially unfair.821 The commissioner however
found that the demeanour of the witness during proceedings made a trust relationship
between employer and employee to irretrievably break down.822
Hardie AJ was of the view that if a case falls under one of the situations listed in s
193(2) (a)-(d), it is not competent for the labour court or an arbitrator to order
reinstatement or re-employment.823 This is because s 193(2) makes provision as to
when reinstatement or re-employment must be ordered and when it must not be
ordered.824 He went further stating that it was not clear from the commissioner’s
reasoning which provisions contained in s 193(2) he utilised to exercise his powers
not to award reinstatement.825 In attempting to bring the commissioner’s reasoning
817 Monare para 9.818 Monare para 58.819 Ibid.820 Sibeko v Xstrata Coal South Africa 2016 37 ILJ 1230 (LC) para 1 (hereinafter referred to as Sibeko).821 S 193(2) of the LRA.822 Sibeko para 4.823 Sibeko para 16.824 S 193(2) of the LRA.825 Sibeko para 11.
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within s 193(2) prescripts, first respondent submitted that the commissioner exercised
his powers not to order reinstatement either in terms of s 193(2) (b) or (c).826
Hardie AJ delt with s 193(2) (b) and applied Maepe827 case where he interpreted that
the circumstances which can be taken into account are those which prevailed at the
time of the dismissal and not thereafter.828 This means that when interpreting
‘circumstances surrounding the dismissal’ the applicant’s demeanour during arbitral
proceedings is irrelevant. He went on to deal with s 193(2) (c), and in his view, the
state of affairs would be such that the appellant could not perform his duties
effectively.829 Therefore the commissioner erred in not reinstating the applicant merely
because of his misconduct during arbitration.830 The commissioner in not reinstating
the applicant having found that his dismissal was substantively unfair, but ordered for
compensation instead, such finding was not a decision that a reasonable decision
maker could have come to.831
4.5 Legal Representation at Disciplinary Hearings and at the CCMA
4.5.1 Legal Representation at Disciplinary Hearings
Labour lawyers and consultants have assumed a remarkable position in the dispute
resolution system of South Africa, especially where individual labour disputes are
concerned.832 Their impact in labour dispute system has increased over the past few
years despite legislative attempts to keep them out of the process. Efficiency is the
benchmark of dispute resolution, and disputes should be resolved as quickly and
826 S 193 (1) of the LRA states: “The Labour Court or the arbitrator must require the employer to reinstateor re-employ the employee unless: (b) the circumstances surrounding the dismissal are such that acontinued employment relationship would be intolerable; (c) it is not reasonably practicable for theemployer to reinstate or re-employ the employee.”
827 Maepe v CCMA (2008) 8 BLLR 723 (LAC).828 Maepe para 12.829 Maepe para 13 where he gave an example of employing someone whose driver’s licence has been
withdrawn to become a driver thus requiring an employee to commit an offence.830 Maepe para 23.831 Maepe para 26.832 Bendeman 2006 African Journal on Conflict Resolution 86. See also Nkhumise “Dismissal of an
Employee at the Instance of a Client: Revisiting Nape v INTCS Corporate Solutions (Pty) Ltd in theContext of the Labour Relations Amendment Act 6 of 2014” 2016 Law, Democracy and Development106.
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informally.833 The disputes should not drag on indefinitely and the dispute system in
place should assist parties resolve their disputes effectively. However, the moment
efficiency, informality and expeditiousness becomes a sole priority, a dispute
resolution system may run risk of losing sight of its goals namely resolving disputes.834
Once a dispute has been referred to a dispute settlement body, it should be dealt with
in an efficient manner with minimum procedural formalities.835 Parties should under
all circumstances be able to put their cases before a dispute settlement body by
themselves.836 Furthermore, s 138 of the LRA is the vital statutory mechanism for
warranting flexibility.837 Although informality is a perfect system of dispute resolution,
it should not be a justification for ignoring the parties’ needs and rights.838 Also,
informal proceedings do not mean disorderly or unstructured proceedings.
The LRA is silent on the rights of an employee in disciplinary hearings and this calls
for reliance on the common law, constitution and legal position of other countries
serving as persuasive precedent. In terms of common law, an employee does not
have an automatic right to legal representation in disciplinary hearings and a current
South African position is that legal representation is not a requirement for a fair hearing
in disciplinary matters.839 So if an employee faces disciplinary action, he can request
legal representation but the chairman has the discretion whether to allow or refuse
it.840 However, if the chairman’s discretion is not exercised properly, such a hearing
833 Brand et al 15.834 Brand et al 16. It should be noted that efficiency, informality and expeditiousness can serve to oil the
wheels of dispute resolution, however, rushing through the motions may impede justice and fairness asthey may require time.
835 An ideal dispute resolution system should be as informal and non-technical as possible because of thenegative perceptions about litigation.
836 This view seems to suggest that the use of legal representatives inevitably leads to formality andtechnical arguments and procedures. It however raises a question whether parties themselves areguarantors of informality? Or its the dispute resolver or commissioners who control the dispute processin terms of s 138 (1) of the LRA which states that “The commissioner may conduct the arbitration in amanner that the commissioner considers appropriate in order to determine the dispute fairly and quickly,but must deal with the substantial merits of the dispute with the minimum legal formalities.”
837 Fergus From Sidumo to Dunsmuir: The Test for Review of CCMA Arbitration Awards (PhD-thesis, UCT,2013) 31.
838 S 135(3) (c) of LRA a conciliator is expected to make recommendation to the parties. Further, a balanceneeds to be struck in order to meet the needs of both parties which may include maintaining a long termrelationship.
839 Kruger Legal representation at Disciplinary hearings and before the CCMA (LLM-thesis, UP, 2012) 4.840 In Dladla v Administrator Natal (1995) 3 SA 769 (A) applicants were summoned to attend a hearing and
were informed that legal representation will not be allowed. A case of Enderby Town Council FootballClub v The Football Association Ltd 1971 (1) ALL ER 215 was referred to in which the court stated that“when rules say nothing, the party has no absolute right to be legally represented. It is a matter of thediscretion of the tribunal as masters of their own procedure and if they, in proper exercise of theirdiscretion decline legal representation, courts will not interfere…”
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could be procedurally unfair.841 In Hamata842, the issue in dispute was whether the
refusal of legal representation in disciplinary hearings was constitutional? The
Supreme Court of Appeal however found that such a limitation was not
unconstitutional.843 In United Kingdom, a person does not have an automatic right to
legal representation but when an employee faces a severe penalty such as dismissal,
legal representation becomes allowable.844
4.5.2 Legal Representation at the CCMA
Prior to the implementation of the Amendment Act of 2002,845 legal representation was
regulated by s 135(4), s 138(4) and s 140(1) of the LRA of 1995.846 In Netherburn847,
the appellant dismissed the 3rd respondent on account of alleged misconduct. The
appellant was represented by an attorney, while the 3rd respondent was represented
by a union official. At the commencement of the arbitration the union official objected
to legal representation and the commissioner decided not to allow legal
representation. The appellant asked for a postponement, which request was denied.
At that stage the appellant and his attorney left the proceedings and the arbitration
841 Kruger (LLM-thesis, UP, 2012) 4.842 Hamata and Another v Chairperson Peninsula Technikon Internal Disciplinary Committee and Others
(2002) 23 ILJ 1531 (SCA). See also MEC: Department of Finance, Economic Affairs and Tourism,Northern Province v Mahumani (2004) 25 ILJ 2311 (SC).
843 Ibid.844 Brooks “The Reform of Labour Laws: An International Comparison” 2006 University of New South
Wales Law Journal 22.845 Labour Relations Amendment Act 12 of 2002.846 Du Toit et al Labour Relations Law: A comprehensive guide 3ed (1999) 575. Also see Theron and
Godfrey “The CCMA and Small Business-The Results of a Pilot Study” 2000 Industrial Law Journal 65.And also S 138(4) of the LRA 66 of 1995 read as follows:“In any arbitration proceedings, a party to the dispute may appear in person or be represented by onlya legal practitioner, a co‐employee or by a member, office bearer or official of the party’s trade union oremployers’ organization and if the party is a juristic person by a director or an employee”.Section 140(1) read as follows:“(1) If the dispute being arbitrated is about the fairness of a dismissal and a party has alleged that thereason for the dismissal relates to the employee’s conduct or capacity, the parties, despite section138(4), are not entitled to be represented by a legal practitioner in the arbitration proceedings, unless-The commissioner and all the other parties consent; orThe commissioner concludes that it is unreasonable to expect a party to deal with the dispute withoutlegal representation, after considering-(i) The nature of the questions of law raised by the dispute(ii) The complexity of the dispute(iii) The public interest and(iv) The comparative ability of the opposing parties or their representatives to deal with the arbitrationof the dispute.”
847 Netherburn, Engineering CC t/a Netherburn Ceramics v Mudau NO (JA 1/05) [2008] ZALAC 13.
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was held in his absence. In the Labour Appeal Court, the appellant argued that section
138(4) provides for an automatic right to legal representation and that section 140(1)
is an exception to it that limits that right. In that regard, Zondo JP referred to the Court
a quo which explained that:848
“The Explanatory Memorandum on the labour relations bill as published in (1995) 16ILJ278 (the memorandum). The Memorandum takes into account the experience drawnfrom the application of the 1956 LRA and points out that under the latter Act, resolutionof labour disputes had, contrary to earlier intentions, become legalistic in form with theresult that the process had become expensive, inaccessible, protracted andadversarial. The Memorandum attributes this to the involvement of lawyers andrecommends that the best way of correcting the situation is to exclude them from theprocess”.
The Amendment Act, which came into operation on 1 August 2002, repealed both s
138(4) and s 140(1). The statute did not replace the sections referred to with any new
provisions regarding the right to legal representation in arbitration proceedings it
however inserted section (2A) into section 115.849 Also the Amendment Act of 2014,850
made some certain changes to s 115(2A) as it reads:“The commission may make rules regulating-(k) the right of any party to be represented by any person or category of persons in anyconciliation or arbitration proceedings, including the regulation or limitation of the rightto be represented in those proceedings;(kA) the consequences for any party to conciliation or arbitration proceedings for notattending those proceedings;(m) all other matters incidental to performing the functions of the commission.”851
The intention of the legislator was that the LRA would no longer regulate the right to
legal representation in CCMA proceedings.852 Lawyers are generally not allowed to
represent parties where the dispute concerns a dismissal obviously due to the fact that
they make a process legalistic, expensive and risk undermining the object of an
expeditious arbitration.853 It is further assumed that employees will be prejudiced since
they are economically infant whilst employers can be able to absorb legal
representation costs.854 Legal representation is permitted in circumstances where
848 Netherburn para 47 where the judge dismissed the appeal.849 S 115(2A) inserted by s 22(a) of Labour Relations Act 12 of 2002.850 Labour Relations Act 6 of 2014.851 (S 115(2A) (k) substituted by s 18(d) of Act 6 of 2014, S 115(2A) (kA) inserted by s 18(e) of Act 6 of
2014 however S115(2A) is inserted by s 22(a) of Act 12 of 2002.852 Norman Tsie Taxis v Pooe NO (2005)26 ILJ 109 (LC) 114.853 Gounden An Analysis of the Presentation and Admissibility of Evidence at CCMA Arbitrations (LLM-
thesis, UKZN, 2013) 5.854 Collier “The Right to Legal Representation under the Labour Relations Act” 2003 Industrial Law Journal
753.
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consent of all parties and that of the commissioner is obtained. Even if another party
objects to legal representation, commissioners are empowered to permit such
representation if he feels the situation warrants such representation in terms of the
Rule 25 (1) (c) of the CCMA which states that:
“If the dispute being arbitrated is about the fairness of a dismissal and a party has allegedthat the reason for the dismissal relates to the employee’s conduct or capacity, the parties,despite sub rule (1)(b), are not entitled to be represented by a legal practitioner in theproceedings unless-1) the commissioner and all parties consent;2) the commissioner concludes that it is unreasonable to expect a party to deal with the
dispute without legal representation, after considering-(a) the nature of the question of law raised by the dispute;(b) the complexity of the dispute;(c) the public interest; and(d) the comparative ability of the opposing parties or their representatives to deal with
the dispute.”
Therefore if parties fail to agree on representation, commissioners are expected to use
their discretion in permitting or prohibiting representations.855 In Afrox Ltd case,856 it
was held that the vital question to be determined by commissioner is if it would be
unreasonable to allow a party to continue without legal representation. In the recent
case of CCMA v Law Society of the Northern Provinces, 857 the constitutionality of Rule
25 (1) (c) was in dispute. Although Tuchten J at High Court held that the rule was
unconstitutional on the basis that it was irrational as it limited a litigant’s right to legal
representation,858 it was reversed at the Supreme Court of Appeal as it was held that
the rule served a legitimate purpose.859
In addition, the efficiency aspect of dispute resolution require that parties have easy
access to the labour dispute resolution system.860 It is common knowledge that parties
should know who to approach and how to involve the dispute resolution bodies in their
disputes. In order to achieve accessibility, the CCMA’s services should be essentially
free,861 no costs for referring unfair dismissal and unfair labour practice disputes to the
855 Grogan workplace law 10ed (2009) 429.856 Afrox Ltd v Laka (1999) 20 ILJ 1732 (LC).857 Commissioner for Conciliation, Mediation and Arbitration v Law Society of the Northern Provinces
(005/13) 2013 ZASCA 118.858 Law Society of the Northern Provinces v Minister of labour (2013) (1) BLLR 105 (GNP) 45.859 The legitimate purpose of the LRA is to attain speedy resolution of labour disputes informally and cost
effective. There is also no general right to legal representation in administrative tribunals.860 Ibid.861 Only under exceptional circumstances are parties required to pay fees to the CCMA; consult, in this
regard, sections 123, 140 (2), 147, 188A and 189A of the LRA.
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dispute settlement bodies and there should be a minimum of formality involved.
Further, legal representation is prohibited in all unfair dismissal proceedings arising
from the alleged misconduct or incapacity of the dismissed employee.862 Should either
or both of the parties to the dispute be desirous of lawyers, they are required to make
express application therefore to the presiding commissioner.863 In addition, the
CCMA’s accessibility is endorsed by its extensive geographical presence, making its
services readily available to the majority of South African residents.864 However, these
dispute settlement bodies should respond promptly when a dispute is declared
because the longer the dispute is left to simmer and escalate, the chances of achieving
consensus based solutions becomes slimmer as strikes and lockouts may become
only solutions to the disputing parties.865
4.6 An Analysis of Rule 25 of the CCMA Rules
Since South Africa is a Constitutional democratic state, it is pivotal in the name of
labour rights that focus is given to the development of rights to legal representation in
labour matters. There are however different opinions with regard to the interpretation
of a right to legal representation at CCMA. There are those who believe that it is fair
to allow legal representation at CCMA, while others are of the opinion that it should be
allowed but subjected to certain limitations.866 The equality clause s 9 of the
Constitution, provides that everyone is equal before the law and has a right to equal
protection and benefit of the law.867 It is important at this point to consider whether
862 CCMA v Law Society, Northern Provinces (005/13) [2013] ZASCA 118.863 Rule 25(1) (c) of the CCMA Rules.864 CCMA’s Annual Report 2009-2010.865 Ibid.866 Nchabeleng The Constitutionality of Rule 25 of the CCMA Rules (LLM-thesis, NWU, 2015) 12.867 This section was interpreted in a case of Harksen v Lane 1998 1 SA 300 (CC) 53 where the court
analysed stages of enquiry into violation of the equality clause as follows: "(a) Does the provisiondifferentiate between people or categories of people? If so, does the differentiation bear a rationalconnection to a legitimate government purpose? If it does not, then there is a violation of section 9(1).Even if it does bear a rational connection, it might nevertheless amount to discrimination. (b) Does thedifferentiation amount to unfair discrimination? The court held that this required a two-stage analysis:(i) firstly, does the differentiation amount to discrimination? If it is on a specified ground, thendiscrimination will have been established. If it is not on specified ground, then whether or not there isdiscrimination will depend upon whether, objectively, the ground is based on attributes andcharacteristics which have the potential to impair the fundamental human dignity of persons as humanbeings or to affect them adversely in a comparably serious manner. (ii) If the differentiation amounts todiscrimination, does it amount to unfair discrimination? If it has been found to have been on a specified
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rule 25 unfairly discriminates against legal practitioners. This is so because the rule
allows directors of companies, and other legal persons, members of close corporations
and trade unions official to appear in any arbitration whereas legal practitioners may
only do so in dismissal cases for misconduct or incapacity only at the discretion of the
commissioner.868 The ramifications of the decision in the case of Law Society of the
Northern Provinces v CCMA869 is that there is no unqualified Constitutional right to
legal representation before an administrative tribunal. The court noted finally that in
fact, the Law Society did not present any evidence that the sub-rule works hardship
on parties to CCMA arbitrations or point to any instance where there has been refusal
of legal representation prejudicing a party.870
It should be noted that the rationale behind this rule is to avoid an unreasonable delay
in less complex matters involving dismissals.871 However, in most cases, where legal
representation was denied, the party against whom the award was granted will most
probably question the fairness of the proceedings by seeking review from labour
court.872 This position is problematic because there is never a quick solution for
dismissal cases involving fairness of dismissal for misconduct and or incapacity as the
process becomes a recurring one due to the fact that an aggrieved party would seeks
a review citing reasons that he or she was not offered an opportunity to use the
services of a legally trained person who is better suited to interpret the law, lead
evidence, cross question witness and ultimately address the commissioner at the end
of the proceedings.873 However, Matlou postulates that a commissioner in arbitration
ground, then unfairness will be presumed. If on an unspecified ground, unfairness will have to beestablished by the complainant. The test of unfairness focuses primarily on the impact of thediscrimination on the complainant and others in his or her situation. The court also commented that ifat the end of this stage of enquiry, the differentiation is found not to be unfair, then there will be noviolation of section 9(3) and (4). (c) If the discrimination is found to be unfair then the determination willhave to be made as to whether the provision can be justified under the limitation clause”.
868 Rule 25(1) (c) of the CCMA Rules.869 Law Society of the Northern Provinces v CCMA 2014 2 SA 321 (SCA) 336. See also National Union of
Mineworkers v Commission for Conciliation Mediation and Arbitration (JA90/2013) [2014] ZALAC 51.870 Ibid.871 Lawyers are capable of prolonging a simple matter by applying legal labour and jargon which may
ultimately complicate the matter. It is however incorrect to view lawyers as people who abuse theadministrative system. See also Benjamin 2013 International Labour Office 23.
872 Nchabeleng (LLM-thesis, NWU, 2015) 37.873 Ibid.
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proceedings or disciplinary tribunals must take heed of social justice requirement when
dealing with Rule 25 (1) (b) and (c) of the CCMA Rules.874
4.7 Case Law on Interdicting Disciplinary Hearings
4.7.1 Zondo v Uthukela District Municipality (2015) 36 ILJ 502 (LC)
Applicants applied for an interdict, inter alia to restrain the first respondent from
proceeding with the disciplinary hearing against the applicants pending the final
determination of their application to review the legal representation ruling of the
second respondent.875 Six charges were levelled against the applicants and all were
related to allegations of dishonesty.876 At the commencement of the disciplinary,
applicants came with pre-prepared written applications to be allowed legal
representation in the disciplinary hearing.877 The applicants acknowledged that they
were aware of the provisions of the agreement relating to representation but stated
that they were entitled to a fair hearing.878
According to the case of Jiba v Minister: Department of Justice and Constitutional
Development,879 the court realised that by entertaining the applicant’s application for
an interdict, it simply meant that the court has to bypass the bargaining council as a
dispute resolution body crafted in terms of the LRA.880 The labour court through its
review powers, is mandated to exercise a degree of oversight over labour arbitrations
and its powers as a court of first instance are limited by the LRA and such constraint
must to be respected.881 The only issue now standing in the way of the disciplinary
hearing proceeding to finality is the application to interdict disciplinary hearings.882 It
874 Matlou 2016 South African Mercantile Law Journal 550. Furthermore, this rule limits the right of theparties to have legal representation in arbitration hearings relating to dismissals for misconduct orincapacity.
875 Zondo v Uthukela District Municipality (2015) 36 ILJ 502 (LC) para 1 (hereinafter referred to as Zondo).876 Zondo para 12.877 Zondo para 13.878 Ibid.879 Jiba v Minister: Department of Justice and Constitutional Development and Others (2010) 31 ILJ 112
(LC)880 Zondo Para 14.881 Ibid.882 Mashiya v Sirkhot NO (2012) 33 ILJ 420 (LC) para 37.
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is actually in the interest of expeditious dispute resolution that disciplinary proceedings
continue to finality as soon as possible.883
In Zondo,884 it is highly unlikely that such a review application could even be heard in
less than six months, rather it could reasonably take a year.885 Because of this, the
delay will be indefinite and applicants remain employed hence would continue to be
paid their salaries.886 The financial predicaments of most municipalities would be a
further waste of public funds if disciplinary proceedings are delayed indefinitely. In
South Africa Municipal Workers Union on behalf of Members v Kopanong Local
Municipality887, Snyman AJ observed that urgent applications to interdict disciplinary
hearings should not be the norm as they seem to have become.888 He also reiterated
that such conduct of court’s intervention in disciplinary hearings is against the
objectives of the LRA where structures for an effective, speedy resolution have been
created.889
Furthermore, in Moroenyane v Station Commander of the South Africa Police
Services890, Snyman AJ lamented that litigants seeking to permanently interdict
disciplinary proceedings from taking place need to be warned.891 The labour court will
only entertain such applications if exceptional circumstances and material
irremediable prejudice is shown to exist.892 The interdict was sought on the basis of it
being unfair and unreasonable to institute disciplinary proceedings against the
applicant only in 2016, when an alleged misconduct occurred in 2014.893 The
approach in dealing with whether disciplinary proceedings should be ended on the
basis of a delay is firmly founded in considerations of fairness.894 Fairness dictates
883 Zondo para 42.884 (2015) 36 ILJ 502 (LC).885 Zondo para 43.886 Ibid.887 South Africa Municipal Workers Union on behalf of Members v Kopanong Local Municipality (2014) 35
ILJ 1378 (LC) (hereinafter referred to as Kopanong Local Municipality).888 Kopanong Local Municipality para 33.889 Ibid.890 Moroenyane v Station Commander of the South Africa Police Services [2016] ZALCJHB 330
(hereinafter referred to as Moroenyane).891 Moroenyane para 2.892 Ibid.893 Moroenyane para 4.894 Moroenyane para 40.
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that disciplinary hearing should be taken promptly when the employer becomes aware
of the alleged misconduct.895
Article 10 of the ILO Recommendation896 suggests that the employer is deemed to
have waived his right to terminate the employee for misconduct within a reasonable
period of time after he has knowledge of such misconduct. However, the ruling in
Moroenyane897 was that there is no injustice to the applicants standing in the way of
the disciplinary proceedings against her.898 It was considered not to be unfair to have
disciplinary hearing proceed to finality and her application should fail.899 The first delay
occurred because she wanted postponement to get her documents in order.900 The
second delay was caused because she asked for consent for an external arbitrator to
be appointed as chairperson, and the third delay was caused by her medical condition
hence she was the author of her delays.901 In Carolissen v City of Cape Town,902 it
was emphasised that if there is undue delay at disciplinary hearings, or if the aggrieved
party is dissatisfied with the outcome, he or she can follow the prescribed dispute
resolution process as set out by in the LRA.903
4.7.2 Ngcongo v University of South Africa (J 2950/2011) [2012] ZALCJHB 146
In this case, the applicant seeks for an interdict against respondent to proceed with
disciplinary enquiry and also seek reviewing and setting aside the ruling made by the
chairperson of allowing the employer to be represented by an external representative
who will act as the initiator at the hearing.904 The applicant is an admitted attorney
employed as a legal advisor of the University of South Africa (UNISA) and was charged
with gross negligence in the execution of his duties.905 The applicant contended that
895 Mahlangu v CIMDeltak (1986) 7ILJ 346 (LC). One of the guidelines for a fair hearing was a right to havea hearing take place timeously.
896 Article 10 of ILO Recommendation 166.897 [2016] ZALCJHB 330.898 Moroenyane para 50.899 Ibid.900 Moroenyane para 51.901 Ibid.902 Carolissen v City of Cape Town (2014) 35 ILJ (LC) (hereinafter referred to as Carolissen).903 Carolissen para 27.904 Ngcongo v University of South Africa (J 2950/2011) [2012] ZALCJHB 146 para 1 (hereinafter referred
to as Ngcongo).905 Ngcongo para 2.
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UNISA should not be allowed external representation as per disciplinary code.906 The
Panel concluded that it has discretion to consider legal representation depending on
the complexity of the matter and the applicant was afforded the same right.907
The applicant now regards the issue as a matter of urgency despite his delay in
securing a legal representative and only launches a review application five weeks
later.908 It was observed by Basson J that the disciplinary code is a mere guideline
and not law hence employers should be allowed to depart from it in exceptional and
appropriate circumstances.909 In this matter, Basson J is of the view that external legal
representation should be permitted even if the code expressly denounces it.910 The
issues concerned were of a legal nature, and the applicant would not be prejudiced
because he himself is an admitted attorney and was afforded the same right.911
Therefore Basson J found that the Panel’s conclusion was reasonable and no
exceptional circumstances existed to warrant interference of the labour court.912
4.7.3 Mahoko v Mangaung Metropolitan Municipality (JA 878/13) [2013] ZALCJHB 63
This is an urgent application to interdict a disciplinary hearing and invalidate the
charges against the applicant.913 The Municipality instructed the applicant to appear
on hearings but he requested it postponed whilst seeking legal representation.914 So
the Municipality conceded to the applicant’s request provided that it would likewise
appoint legally qualified people to act as initiator and chairperson.915 Steenkamp J
observed that the applicant’s attorneys did not raise any preliminary issues despite
numerous requests and reminders from the initiator.916 At the day of hearing, the
applicant representatives began to raise preliminary points despite earlier assurance
906 Ngcongo para 5.907 Ngcongo para 7.908 Ngcongo para 9.909 Ngcongo para 16.910 Ngcongo para 18.911 Ngcongo para 22.912 Ngcongo para 23.913 Mahoko v Mangaung Metropolitan Municipality (JÂ 878/13) [2013] ZALCJHB 63 para 1 (hereinafter
referred to as Mahoko).914 Mahoko para 2.915 Mahoko para 5.916 Mahoko para 9.
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that none would be raised and consequently the hearing was postponed.917 The
applicant representatives contended that the Municipality had delayed
commencement of the disciplinary hearing beyond the time envisaged by the Code.918
The Labour Court ruled that the urgency of this matter is self-created and the applicant
failed to make a prima facie right of the relief sought.919 Further the hearing should
continue as the applicant would not suffer irreparable harm since alternative remedy
is available to him.920
4.8 An Analysis of Current Labour Dispute Resolution Mechanisms and theirEffectiveness
The establishment of the CCMA was supported by labour, government and business
and there is no doubt that the CCMA upholds the democratic value of social justice
and human dignity to dismissed employees.921 Furthermore, its mandate was to move
labour relations from an adversarial system to an inquisitorial system in order to
provide expeditious resolution of disputes and due to its accessibility, the CCMA
received an unexpected volume of referrals that resulted in a strain of its resources
hence its effectiveness became jeopardised.922
The underestimation of the cases to be referred to the CCMA was the first predicament
as early calculations were that it would deal with around 30 000 cases per annum,
however, 154 229 referrals were received in 2010/2011.923 Moreover, in 2014 referrals
were about 200 000 and this colossal response created a strain to the system.924 This
shows that some of the factors that were aimed at achieving the objectives of the LRA
such as accessibility by minimizing costs are actually the reasons for some of its
917 Mahoko para 10.918 Mahoko para 11.919 Mahoko para 23.920 Mahoko para 39.921 Benjamin 2009 Industrial Law Journal 26.922 Ibid.923 Levy and Venter The Digest Resolution 2012 Tokiso Dispute Resolution (2012) 23.924 Levy and Venter The Digest Resolution 2014 Tokiso Dispute Resolution (2014) 28.
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failures.925 The fact that there are no costs involved in referring a dispute to the CCMA
attracts petty claims.926
In an effort to expedite enforcement of the CCMA arbitration award, the amendments
to s 143 (3) of the LRA were effected and came into effect on 1 January 2015.927 The
consequence of the amendment is that an award that has been certified by the CCMA
can be presented to the deputy sheriff for execution if payment is not made.928 This
removes the need to approach the Labour Court to issue a writ of execution. Also in
respect of awards ordering reinstatement, which are enforced by contempt
proceedings at Labour Court, one need not to apply for the award to be made an order
of court before he commences with contempt proceedings.929 Furthermore, the
enforcement of awards will happen in accordance with the rule of tariffs of the
Magistrate Courts.930
However, the CCMA arbitration award does not usually become the end of the dispute,
the LRA also created a review process whereby an aggrieved party can approach the
Labour Court for review. At this point it should be noted that trying to enforce an award
subjected to review may be a waste of time as the Labour Court may stay the
enforcement if the other party brings an application to stay the execution of the
award.931 These platforms of review undoubtedly delay in bringing matters to finality
hence compromising expeditiousness in resolving labour disputes.
Furthermore, the intended guidelines in schedule 8 (7) of the LRA932 are now used as
a barometer and this accordingly has resulted in the system being too technical by use
925 Mphahlele (LLM-thesis, UP, 2016) 19.926 Ibid.927 Amendment to s 143 (3) of the LRA 6 of 2014 reads: “An award issued by a commissioner is final and
binding and it may be enforced as if it were an order of the Labour Court in respect of which a writ hasbeen issued, unless it is an advisory award.” Before the amendments, in order to enforce the award, asuccessful party in the arbitration proceeding had to have the award certified by the director of theCCMA and once certified attend the Labour Court to have a writ of execution issued and then taken tothe sheriff. It was really a laborious and cumbersome process which led to the majority of awards remainunenforced because there were delays in the certification process as Benjamin reports that it took upto 7 months for an award to be certified.
928 Ibid.929 S 143 (4) LRA.930 S 143 (5) LRA.931 Grogan Labour Litigation and Dispute Resolution (2010) 161.932 Schedule 8 (7) of the LRA 66 of 1995 which contains guidelines in cases of dismissal for misconduct
“Any person who is determining whether a dismissal for misconduct is unfair should consider- (i)Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to,the workplace; and (ii) If a rule or standard was contravened, whether or not-the rule was a valid orreasonable rule or standard; (iii) The employee was aware or could reasonably be expected to have
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of lawyers.933 It is undoubted that lawyers turn the whole process into a court as they
raise points in limine934 which have the effect of causing postponements. This is not
in harmony with achieving simplicity because the CCMA was meant to resolve
disputes in a manner that seeks to avoid technicalities and delays caused by
postponements which are a dominant feature in litigation courts.
4.9 Conclusion
The dispute settlement processes have been discussed and their strengths and
weaknesses pointed out. A lot needs to be done to improve the labour dispute system
hence the Labour Relations Bill of 2017. The array of cases discussed above in the
text highlight that there is considerable delay in resolving labour disputes. These
delays are attributed to the people who use the system as alluded to by Van Niekerk
in chapter one of this study. Lawyers are gaining an upper hand in labour disputes
hence creating adversarial relations which the LRA is eager to evade. Since the
arbitration award does not suggest the finality of a dispute, avenues of review
applications seem to prolong resolution. On interdicting disciplinary hearings,
applicants seem to abuse the whole system by attempting to bypass the conciliation
and arbitration of disputes. The next chapter touches on the review of CCMA
arbitration awards. There is need for a stringent test that should disallow arbitration
awards being tempered with.
been aware of the rule or standard; (iv) The rule or standard has been consistently applied by theemployer; and (v) Dismissal was an appropriate sanction for the contravention of the rule or standard.”
933 Mphahlele (LLM-thesis, UP, 2016) 20.934 It is a preliminary point which is offending made by another party before trial begins.
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CHAPTER FIVE
5. THE REVIEW OF CCMA ARBITRATION AWARDS UNDER THE LRA
5.1 Introduction
Despite an intention finally to resolve disputes at arbitration, the legislature saw fit to
introduce a mechanism providing for the judicial scrutiny of defective arbitration
awards.935 Unlike the review application which is in current operation, the appeal
process which existed in terms of the Labour Relations Act 28 of 1956, was rejected
and considered an obstacle to the overall aim of a speedy and inexpensive resolution
of disputes.936 The CCMA is an administrative body whose appointed commissioners
are not infallible and therefore their decisions are subject to review although they are
described as final and binding.937 According to Van Graan,938 approximately one in
ten CCMA awards are taken on review to the Labour Court and the situation is
alarming as it takes 23 months from date of arbitration award to the date the review
application is heard. After the Labour Court has made a ruling, the matter can still
proceed to be appealed to the Labour Appeal Court which can further prolong the
process. There is no doubt that the review process is undermining the CCMA in
quickly resolving disputes.
Furthermore, this large number of review applications raises debates and questions
whether it is due to poor awards written by commissioners or disputants themselves
are uncertain of the grounds of review as various courts are giving different
935 Kleu and Govindjee “The Role of Reasonableness in the Review of CCMA Arbitration Awards in SouthAfrica-An English Comparison” 2014 Industrial Law Journal 1777.
936 Kleu and Govindjee 2014 Industrial Law Journal 1778.937 Landman “A Study in Deference: Labour Court Deference to CCMA Arbitration Awards” 2008 Industrial
Law Journal 1613.938 Van Graan The grounds for review of the CCMA awards (LLM-thesis, UP, 2014) 2. However Labour
Relations Amendment Act 6 of 2014 added s 145(5) and (6) to the Labour Relations Act 66 of 1995which now reads:“(5) Subject to the rules of the Labour Court, a party who brings an application under subsection (1)must apply for a date for the matter to be heard within six months of delivery of the application, and theLabour Court may, on good cause shown, condone a late application for a date for the matter to beheard(6) Judgment in an application brought under subsection (1) must be handed down as soon asreasonably possible”.
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interpretations of the grounds of review.939 In a similar fashion, certainty of the correct
test for review may lead to disputes being resolved quickly and cost effective. This
chapter discusses impact of the Amendment Act of 2014 to the Labour Relations Act,
s 145 which has been amended with the intention to limit frivolous review applications
by employers who intend the matter to die at Labour Court due to an employee’s lack
of funding and other factors.940 Section 145(6) of the LRA emphasises the need for
the speedy resolution of review applications which is one of the original aims of the
current LRA.941 This chapter however starts by distinguishing an appeal from a review
within the scope of the LRA.
5.2 Distinction between Appeals and Reviews within the Scope of the LRA
The current LRA abolished the right to appeal against decisions of the Industrial Court
that existed under the 1956 LRA and replaced that with the right to take decisions of
the CCMA on review to the Labour Court.942 However, a party who is unsatisfied with
an award, the Labour Court has the power in terms of the 1995 LRA, to review an
award given by a commissioner.943 The distinction between an appeal and review is
thus more difficult than it appears at first glance.944 It is important to differentiate
between an appeal and a review as the LRA does not permit an appeal from an
939 Ibid.940 S 145 of the LRA:
“(7) The institution of review proceedings does not suspend the operation of an arbitration award, unlessthe applicant furnishes security to the satisfaction of the Court in accordance with subsection (8).(8) Unless the Labour Court directs otherwise, the security furnished as contemplated in subsection (7)must-(a) in the case of an order of reinstatement or re-employment, be equivalent to 24 months‘remuneration; or(b) in the case of an order of compensation, be equivalent to the amount of compensation awarded”.
941 Preamble to the LRA.942 Grogan 607.943 S 145 and 158 of the LRA 66 of 1995. See also Grogan 606.944 Klipriver Licensing Board v Ebrahim1911 AD 458 where De Villiers CJ observed that appeal and review
are in some Acts employed as interchangeable terms. In Tikly v Johannes NO 1963 (2) SA 588 (T), at590 F, the Court held that the word ‘appeal’ can have different connotations and the learned judgedefined a review as a limited re-hearing with or without additional evidence or information to determine,not whether the decision under appeal was correct or not, but whether the arbitrators had exercisedtheir powers and discretion honestly and properly. Also, in S v Mohamed 1977 (2) SA 531 (A), at 538F, Trollip JA defined a review as a limited re-hearing, with or without additional information, to determine,not whether the magistrate’s decision was right or wrong, but whether he exercised his powers anddiscretion honestly and properly.
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arbitrator’s award in order to provide a simple, inexpensive resolution of unfair
dismissals.945
An appeal involves a re-hearing on the merits and is limited to the evidence of
information before the lower tribunal.946 So the question to be asked on appeal is
whether the decision was wrong in fact and in law.947 Furthermore, an appeal is
concerned with the correctness of a result and an Appeal Court has unlimited powers
to interfere with the decision appealed against.948 A review on the other hand, involves
a limited hearing in terms of s 145(2) (a) and (b) of the LRA.949 The question to be
asked on review is whether the procedure adopted was formally correct.950 Therefore
a review is confined to the manner or procedure in which a tribunal comes to its
decision rather than with a result.951 And this was determined in Lekota v First National
Bank of SA Ltd,952 the court held that in review proceedings, the function of the court
is to decide not whether the commissioner acted correctly, but whether he or she
committed misconduct or a gross irregularity or exceeded his powers.
945 The explanatory memorandum prior to the promulgation of the LRA, states that the absence of anappeal from the arbitrator’s award speeds up the process and frees it form the legalism thataccompanies appeal proceedings. The Ministerial Legal Task Team was appointed in August 1994 tooverhaul the laws regulating Labour relations in South Africa. The Task Team produced a draft Billaccompanied by a detailed explanatory memorandum for discussion and negotiation by the socialpartners to reach consensus on a new labour relations for South Africa.
946 Grogan 227.947 Brand et al 224.948 Grogan 608. See also Finnemore and Van Rensburg 317.949 These are the grounds of review in terms of s 145 of the LRA.950 Brand et al 224.951 Howett 2008 Industrial Law Journal 1620.952 Lekota v First National Bank of SA Ltd 1998 10 BLLR 1021 (LC).
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5.3 The Role of Labour Courts in Reviewing CCMA Arbitration Awards
5.3.1 The Procedure for Bringing a Review Application
A party to a dispute may make an application in terms of section 145 of the 1995 LRA
for an order setting aside the award.953 Rule 7A of the Labour Court Rules, also states
that:954
“A party desiring to review a decision or proceedings of a body or persons performinga reviewable function justiciable by the court must deliver a notice of motion to theperson or body and to all other affected parties.”
An application for review must be made within six weeks of the date that the party
received the award.955 However, it is possible for the Labour Court to condone a late
review on good cause shown by way of a condonation application.956 If a party claims
that a commissioner was corrupt, an application to set aside the arbitration award must
be made to the Labour Court within six weeks of the date on which the party
discovered the corruption.957
5.4 The Nature and Grounds for Review Proceedings (s 145)
Section 145 of the LRA, governs the review of award by the CCMA and by Bargaining
Councils, and it can only be made on the following specified grounds:958
(a) “Commissioner committed a misconduct in relation to his or her duties;(b) Commissioner committed a gross irregularity in the conduct of the arbitration
proceedings;(c) Commissioner has exceeded his or her powers;(d) The award has been improperly obtained.”
953 S 145 of the LRA.954 A review application could be brought in terms of Rule 7 of the Labour Court Rules although it is not
recommended in the case of Naraindath v CCMA [2000] 6 BLLR 716 (LC) para 11. See also Bosch etal 310.
955 S 145(1) (a) and (b) of the LRA.956 S 145(1A) of the LRA.957 Du Toit et al 621-622.958 Du Plessis and Fouche A practical Guide to Labour Law 6ed (2006) 326. See also Brand et al 224. And
s 145(2) (a) and (b) of the LRA.
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The contradictory judgements about whether the Labour Court could review arbitration
awards under the general review provision of s 158(1) (g) was resolved by the case of
Carephone.959 The Labour Appeal Court held that review of CCMA arbitration is
limited to the grounds set out in s 145.960 The above mentioned grounds of review are
elucidated in greater detail below.
5.4.1 The Commissioner Committed a Misconduct in Relation to the Duties of the
Commissioner as an Arbitrator s 145(2) (a) (i)
An arbitrator is required to give due consideration to the issues and to apply his mind
thereto.961 In Abdul,962 the question to be considered was whether the arbitrator’s
failure to apply his mind to the issues before him constitutes misconduct in relation to
the duties of the commissioner963 or a gross irregularity in conduct of the arbitration
proceedings?964 The court held that an incomprehensible and self-contradictory
award amounted to gross misconduct in relation to the duties of the commissioner.965
Furthermore, in Country Fair Foods (Pty) Ltd v Theron NO,966 the arbitrator conducted
the proceedings in such a way that his conduct gave rise to a reasonable apprehension
of bias.967 The court held that the award was vitiated by defects in the banner of
misconduct in relation to the duties of the arbitrator, as well as irregularities in the
conduct of the arbitration proceedings. Additionally, in Buckas,968 the court ruled that
the arbitrator’s failure to disclose his business connections with the employer
959 Carephone (Pty) Ltd v Marcus NO [1998] 11 BLLR 1093 (LAC.960 Du toit et al 617.961 An arbitrator should come up with a reasoned conclusion because failure to do so may constitute
misconduct. See also Bosch et al 126.962 Abdul v Cloete NO 1998 3 BLLR 264 (LC).963 S 145(2) (a) (i) of the LRA.964 S 145(2) (a) (ii) of the LRA.965 However in Amalgamated and Textile Workers Union v Veldspun Ltd 1994 (1) SA 162 (A), Goldstone
JA stated that misconduct does not extend to bonafide mistakes the arbitrator may make whether inFact or in Law.
966 Country Fair Foods (Pty) Ltd v Theron NO (2001) 2 BLLR 134 (LC). It is in this case where misconductwas described as a wrongful or improper conduct that has some personal turpitude.
967 In BTR Industries South Africa (Pty) Ltd v Mawu (1992) 13 ILJ 803 (A), the court held that the test forbias is whether the conduct complained of, would lead a reasonable litigant doubt the impartiality of thepresiding officer. Also in Franklin v Minister of Town and Country Planning 1948 AC 84, bias was definedas a departure from the standard of even-handed justice which the law requires from those who occupyjudicial office or those who are commonly regarded as holding a Quasi-judicial office.
968 Buckas v eThekwini Municipality (2003) 9 BLLR (LC).
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constituted a gross misconduct.969 In addition, in Commuter Handling Services (Pty)
Ltd v Mokoena,970 the commissioner was alleged to have hurried up the employer in
giving evidence, interrupted and interfered with the conduct of the case, the court
observed that even though the commissioner has power to conduct proceedings in
terms of s 138(1),971 this does not afford him the power to depart from the principles
of natural justice.
However, in light of this banner of misconduct, very often, reasons motivated for gross
irregularity, are raised when justifying gross misconduct and this creates an overlap
between the two.972 Further, misconduct emanating from gross negligence or gross
mistake of law or fact has led to the diminishing of the line between this defect of
misconduct and gross negligence.973
5.4.2 The Commissioner Committed a Gross Irregularity in the Conduct of the
Arbitration Proceedings s 145(2) (a) (ii)
There are various defects that have been put before the courts under the banner of
gross irregularity, and these defects include, the commissioner denied the applicants
legal representation,974 the commissioner denied the applicants the opportunity to
969 The principle of nemo judex in sua causa should be applied. However, duty to disclose apply stronglywhere arbitration is compulsory than where entry into it is voluntary. See also s 117(6) and s 136 of theLRA.
970 Commuter Handling Services (Pty) Ltd v Mokoena (2002) 23 ILJ 1400 (LC).971 S 138 of the LRA directs the commissioner to determine the disputes fairly and quickly with minimum
legal formalities.972 Grogan 446.973 Stocks Civil Engineering (Pty) Ltd v Rip No (2002) 3 BLLR 189 (LAC) at para 52 where the Court held
as follows “A court is entitled on review to determine whether an arbitrator in fact functioned as arbitratorin the way that he upon his appointment impliedly undertook to do, namely by acting honestly, dulyconsidering all the evidence before him and having due regard to the applicable legal principles. If hedoes this, but reaches the wrong conclusion, so be it. But if he does not and shirks his task, he doesnot function as an arbitrator and reneges on the agreement under which he was appointed. His awardwill then be tainted and reviewable. It is equally explicit in the agreement under which an arbitrator isappointed that he is fully cognisant with the extent of a limit to any discretion or powers he may have. Ifhe is not and such ignorance impacts upon his award, he has not functioned properly and his awardwill be reviewable. An error of law or fact may be evidence of the above in given circumstances, butmay in others merely be part of the incorrect reasoning leading to an incorrect result. In short, materialmalfunctioning is reviewable, a wrong result per se not unless it evidences malfunctioning. If themalfunctioning is in relation to his duties, that would be misconduct by the arbitrator as it would be abreach of the implied terms of his appointment.”
974 CCMA v Law Society, Northern Provinces (005/13) [2013] ZASCA 118. See also Real Estate Services(Pty) Ltd v Smith (1999) 20 ILJ 196 (LC) where legal representation was inappropriately granted.
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present evidence that they deemed relevant to the case,975 the commissioner ignored
the material evidence before him in his award976 and that the commissioner did not
allow for the postponement of the proceedings.977 It is common cause that this
concept is not defined in the LRA and neither is it defined in the Arbitration Act 42 of
1965 where a similar defect may be brought against an award. Owing to this absence
of definition, the courts have crafted their own meaning as a way to resolve disputes
brought about on the basis of this ground.978 Mason J in Ellis979 stated that an
irregularity in proceedings does not mean an incorrect judgement rather, it refers not
to the result but to the method of a trial which has prevented the aggrieved party from
having his case fully and fairly determined.980 Further, in Goldfields981, Schreiner J
observed that gross irregularities fall broadly into two classes, which are patent and
latent.982 It was held that the crucial question is whether the actions of the arbitrator,
intentional or otherwise, prevented a fair trial?983 If it did, then it is said to amount to
975 Malelane Toyota v CCMA (1999) 6 BLLR 565 (LC) where it was affirmed that a fundamentalrequirement in any arbitration process is that the arbitrator must consider and assess relevant evidenceplaced before him.
976 AA Bull (Pty) Ltd v Kolisi and another (1998) 19 ILJ 795 (LC. See also Malene Toyota v CCMA (1999)6 BLLR (LC) where the court held that the arbitrator committed a reviewable irregularity by ignoringevidence placed before him regarding the commission of the offence and court further held that thearbitrator had failed to apply his mind to the matter and ignored evidence before him.
977 Commuter Handling Services (Pty) Ltd v Mokoena (2002) 9 BLLR 843 (LC) and Keerom Casa Hotel vHeinricks [1999] 1 BLLR 27 (LC). See also Frasers International Removals v CCMA (1999) 7 BLLR 689(LC). Also the commissioner’s discretion to disallow postponement came under review in DimbazaFoundaries Ltd v CCMA (1999) 8 BLLR 779 (LC) where the employer was caught off guard by theemployee's sudden change of issues in dispute at the commencement of the arbitration proceedings.The employee had initially indicated that it would only challenge the sanction meted out by the employer,but however changed to deny that it committed the misconduct alleged. The employee in this case wasrepresented by a union official who was an admitted attorney with vast experience in labour litigationwhereas the employer was represented by a layman. The commissioner acknowledged, in his award,that the sudden turn of event s caught the employer’s representative off guard. It is common cause thatthe employer did not request or apply for postponement of proceedings. However the court held thatthe commissioner ought to have guided the process by coming to the assistance of the employer.According to the court, the commissioner erred by assuming that the employer had the knowledge toapply for postponement. As a consequence of the commissioner's failure to guide the process fairly, hisfinding on the evidence was said to have been affected and hence the award was set aside.
978 Gorgan 447.979 Ellis v Morgan 1909 TS 576.980 In order to justify a review on the basis of gross irregularity, the irregularity must have been of such a
serious nature that it resulted in the aggrieved party not having his case fully and fairly determined.981 Goldfields Investment Ltd and another v City Council of Johannesburg 1938 TPD 551, 560.982 Those that take place openly, as part of the conduct of the trial are called patent irregularities, and those
that take place inside the mind of the judicial officer, are latent irregularities. See also in the case ofAbdull v Cloete No (1998) 19 ILJ 799 (LC) the Labour Court came to the finding that a gross irregularityof a latent nature was committed by the commissioner who gave contradicting reasons for his award.
983 Country Fair Foods (Pty) Ltd v CCMA (1999) 20 ILJ 2609 (LC) where it was stated that the test forestablishing gross irregularity is whether the irregularity was material and precluded a proper fairhearing.
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a gross irregularity.984 It therefore stands to reason that where procedural irregularity
does not affect the outcome, the court may issue a declaration to that effect rather
than setting aside that the award.985 However, it must be conceded that case law on
this aspect is at times contradictory, if not confusing. The confusion seems to stem
from what is gross and what is not.986
5.4.2.1 Procedural Irregularities
Procedural irregularities generally relate to how an arbitrator conducted the
proceedings and patent irregularities appear from the record. In Minister of Safety and
Security v De Vos,987 the court held that the failure of the commissioner to join a party
with an interest in the matter amounted to a gross irregularity in the conduct of the
arbitration proceedings. In SA Clothing Services Ltd v Steel Mining and Commercial
Workers Union,988 a dispute over the dismissal of an employee was referred to the
CCMA, a commissioner ruled that the employee did not wish to testify and that there
was no need for her to do so because he had already testified on her behalf. The
court held that that the LRA permits an employee to be represented at arbitration
proceedings does not mean that a representative can give evidence on her behalf in
respect of matters on which the representative is not competent to testify. The
commissioner’s conduct was held to amount to a gross irregularity in the conduct of
the arbitration proceedings. In Topics (Pty) Ltd v CCMA,989 a commissioner had
attempted to force parties to conciliate without the employer’s consent. The court held
that the commissioner’s conduct amounted to a reviewable irregularity.
In Mutual and federal Insurance Co Ltd v CCMA,990 a commissioner’s failure to afford
the parties an opportunity to present closing arguments was held to constitute a
reviewable irregularity. In Afrox Ltd v Laka,991 the commissioner’s refusal to admit
984 By implication, if it did not, then it will not constitute a gross irregularity. See also Bester v Easigas (Pty)Ltd 1993 (1) SA 30 (C) para 42.
985 Du Toit et al 609.986 Du Toit et al 618.987 Minister of Safety and Security v De Vos (2008) 29 ILJ 688 (CC).988 SA Clothing Services Ltd v Steel Mining and Commercial Workers Union (2000) 9 BLLR 1106 (LC).989 Topics (Pty) Ltd v CCMA (1998) 10 BLLR 1071 (LC).990 Mutual and federal Insurance Co Ltd v CCMA (1997) 12 BLLR 1810 (LC).991 Afrox Ltd v Laka (1999) 20 ILJ 1732 (LC).
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minutes of disciplinary and appeal hearings on the grounds that they were not material
was held to constitute a reviewable irregularity. In Legal Aid Board v John NO,992 the
failure by a commissioner to allow a party to lead relevant evidence constituted a
reviewable irregularity.993 In B and D Mines (Pty) Ltd v Sebothe No,994 the arbitrator’s
ruling that questions can only be put to witnesses through their representative or the
arbitrator was held to have undermined the rules of cross-examination and amounted
to a gross irregularity.995 A commissioner’s conduct was held to constitute a gross
irregularity where she placed the onus of establishing fairness of dismissal on the
employee rather than the employer.996
5.4.2.2 Latent Irregularities
Latent irregularities generally refer to the reasoning process: errors in the manner in
which the decision-maker applied his or her mind. Latent irregularities may be
classified into three categories. These are errors of fact, errors of law, and errors of
logic. Firstly, errors of fact usually arise from failure to apply and have regard to
relevant evidence, incorrect interpretations of evidence, erroneous conclusions drawn
from evidence, considering irrelevant evidence and findings not supported by
evidence.997 In Sasol Mining (Pty) Ltd v Commissioner Ngqeleni,998 the commissioner
had failed to assess the credibility and reliability of the witnesses and failed to consider
the probability and improbability of each party’s version. The court held that if the
applicant could show that had the commissioner reasoned correctly he would have
arrived at a different conclusion the award would be reviewable due to irregularity.999
Also in the case of Blue Ribbon Bakeries v Naicker,1000 an award was set aside
because the commissioner failed to apply the cautionary rule to the evidence of a
992 Legal Aid Board v John NO (1998) 19 ILJ 851.993 Brand et al 206.994 B and D Mines (Pty) Ltd v Sebothe NO (1998) 6 BLLR 573 (LC).995 Brand et al 194.996 Jafta v CCMA (2006) 27 ILJ 2368 (LC).997 Brand et al 206.998 Sasol Mining (Pty) Ltd v Commissioner Ngqeleni (2011) 4 BLLR 404 (LC).999 Sasol Mining (Pty) Ltd para 11.1000 Blue Ribbon Bakeries v Naicker (2000) 12 BLLR 1411 (LC).
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single witness, or to draw adverse inference from the party’s failure to call material
witnesses.1001
Secondly, in errors of law, commissioners are obliged to apply the LRA correctly,1002
and to follow the judgments of the Labour Court and Labour Appeal Court.1003
Furthermore, In Mzeku,1004 the court found that the commissioner who had reinstated
employees whose dismissals were only procedurally unfair to have committed an error
of law. Also in City of Cape Town v SAMWU obo Jacobs,1005 the arbitrator’s
misconception of the law relating to the propriety of holding a second disciplinary
enquiry was found to constitute a gross irregularity. In addition, in Fipaza v Eskon
Holdings Ltd,1006 the Court held that a simple mistake of law does not justify setting
aside an arbitrator's decision, especially where the result would still have been the
same had the arbitrator adopted the correct approach.1007 However, where a mistake
of law is such that it results in the arbitrator misconceiving the nature of the enquiry
and addressing the wrong issue the arbitrator's decision may be set aside.1008 Thirdly,
an error of logic usually tarnish the commissioners’ findings as they become senseless
and unreasonable. In the case of Rainbow Farms (Pty) Ltd v Ngidi,1009 the
commissioner’s failure to realize that the dismissed employee and the person found
to have committed a misconduct were one and the same person rendered the ruling
meaningless.
5.4.3 The Commissioner Exceeded the Commissioner’s Powers s 145(2) (a) (iii)
Du Toit submits that the concept of exceeding one's powers assumes two forms which
are, whether the commissioner strays from the ambit of his jurisdiction or makes a
ruling which is beyond the powers conferred by the LRA and failure to exercise power
1001 Brand et al 202.1002 Grogan Labour Litigation and Dispute Resolution (2010) 294.1003 Le Roux v CCMA (2000) 21 ILJ 1366 (LC). In this case an arbitrator who had departed from the terms
of the judgment of the Labour Appeal Court was held to have committed a gross irregularity in theconduct of the arbitration proceedings.
1004 Mzeku v Volkswagen SA (Pty) Ltd (2001) 22 ILJ 1575 (LAC).1005 City of Cape Town v SAMWU obo Jacobs (2009) 9 BLLR 882 (LAC).1006 Fipaza v Eskon Holdings Ltd (2010) 31 ILJ 2903 (LC).1007 (2010) 31 ILJ 2903 (LC) para 56.1008 Ibid.1009 Rainbow Farms (Pty) Ltd v Ngidi (2001) 6 BLLR 664 (LC).
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or discretion that ought to have been exercised.1010 In Superstar Herbs v CCMA,1011
the court had to explore whether the commissioner’s award was appropriate within the
meaning of section 138(9) and whether there had been a failure of justice. The dispute
involved the dismissal of an employee for theft. The employee barely denied the
offence or the act of theft while the employer led elaborate evidence on the matter.
The commissioner put excessive weight on the employee's bare denial and held that
the employer's evidence required corroboration. The court's view was that the
commissioner erred in these instances by putting undue weight on the bare denial of
the employee as well as asserting that there should have been corroboration. The
court was of the view that the evidence led was enough to prove, on a balance of
probabilities, that the employee was guilty of dishonesty. The award was therefore
inappropriate and not in the spirit of section 138(9) of the LRA,1012 hence the arbitrator
was deemed to have exceeded his powers.
In Balfour/Siyathemba Transitional local authority v CCMA,1013 the arbitrator failed to
take into consideration the housing agreement that stipulated how housing allowances
were to be paid out to employees. Despite the fact that the housing agreement was
adduced as evidence, the commissioner ignored it in arriving at his findings that the
employee was entitled to housing allowance. The labour court found to the contrary
and said that the commissioner erred in finding that the employee was qualified to be
granted a home ownership allowance. The court as per Mlambo J was of the view
that the commissioner did not apply his mind to the matter as required by the LRA and
exceeded his powers when he ignored key evidence put before him.1014
1010 Du Toit et al 619-620. See also National Entitlement Workers Union v John NO 1997 12 BLLR 1623(LC) where it is stated that the scope of exceeding power involves acting ultra vires.
1011 Superstar Herbs v CCMA (1999) 1 BLLR 58 (LC).1012 S 138 (9) states: “The commissioner may make any appropriate arbitration award in terms of this Act,
including, but not limited to, an award-(a) that gives effect to any collective agreement;(b) that gives effect to the provisions and primary objects of this Act;(c) that includes, or is in the form of, a declaratory order.
1013 Balfour/Siyathemba Transitional local authority v CCMA (1998) 9 BLLR 923 (LC).1014 However, the court will not always regard miscalculation of compensation as amounting to exceeding
one’s powers. For instance in Zaayman v Provincial Director: CCMA Gauteng and others (1999) 1 BLLR92 (LC) the commissioner miscalculate the amount of compensation due to a dismissed employee andthe court found that the error had not amounted to excess of power.
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5.4.4 The Award has been Improperly Obtained s 145(2) (b)
This ground of review is borrowed from s 33(1) (c) of the Arbitration Act,1015 and it
focuses on misconduct by a party whereas s 145(2) (a) (i) is limited to the conduct of
the commissioner. Usually the misconduct by the party influences the decision of the
commissioner and may result in the misconduct by the commissioner as he may
deliberately issue an award in favour of that influential party.1016 The Labour Court
dealt with this defect in Moloi,1017 where an application for review was brought on the
strength that one of the parties remained with the commissioner in the arbitration room
while the applicant departed.1018 The court however dismissed a claim that a meeting
with a respondent in the absence of an applicant can influence an award, however, to
avoid an inference of bias, commissioners must adhere to the rules and guidelines laid
down by the courts.1019
In County Fair v CCMA,1020 the applicant alleged that the award was improperly
obtained on the basis that whilst cross examining one of the witnesses, the
representative to the witness kept on indicating, by way of hand signals, when to
answer and when to keep quite. In dismissing this ground, the court noted that there
was no justification on the papers for inferring that the award had been improperly
obtained. Furthermore, in Lekota v First National Bank of SA Ltd,1021 the applicant
was dismissed for refusing to obey an instruction. The commissioner found that the
dismissal was fair. In support of his application for review, the applicant alleged that
the commissioner accepted false evidence in a manner that made him an accessory
to perjury and that he did not treat the case seriously. The court dismissed this
application, stating that there were no grounds to prove the allegation. It is quite
possible that the difficulty in terms of proof posed by this ground has led to a situation
1015 S 33(1) (c) of the Arbitration Act 42 of 1965 states that where an award has been improperly obtained,the court may, on the application of any party to the reference after due notice to the other party orparties, make an order setting the award aside. Furthermore, this banner refers to a situation of briberyor corruption.
1016 S 145(2) (b) of the LRA 66 of 1995 is concerned with a successful party. See also Shoprite Checkers(Pty) Ltd v Ramdaw NO (2000) 7 BLLR 835 (LC).
1017 Moloi v Euijen NO [1999] ZALAC 161018 [1999] ZALAC 16 para 6.1019 Ibid.1020 County Fair v CCMA [1999] ZALC 182.1021 Lekota v First National Bank of SA Ltd (1998) 10 BLLR 1021 (LC).
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where parties have sought refuge in other reviewable grounds prescribed in the
LRA.1022
5.5 Grounds for Review in Terms of Promotion of Administrative Justice Act 3of 2000 (PAJA)
5.5.1 The Administrative Nature of CCMA Awards
In terms of section 6 of Promotion of Administrative Justice Act (PAJA), any person
may institute proceedings in a court or a tribunal for the judicial review of an
administrative action on one or more grounds contemplated in subsection 2 which
includes but not limited to the following:
a) “That the administrator who took it was not authorized to do so by the empoweringprovisions, acted under a delegation of power which was not authorized by theempowering provision or was biased or reasonably suspected of bias.
b) that the action was procedurally unfairc) the action was materially influenced by an error of lawd) the action was taken for a reason not authorized by the empowering provision, for an
ulterior purpose or motive, because irrelevant considerations were taken into accountor relevant considerations were not considered, or in bad faith.
e) the action itself contravenes a law or is not authorized by the empowering provision oris not rationally connected to the purpose for which it was taken.”
In Carephone, it was held that the making of CCMA arbitration awards constitutes an
administrative action, and this was also confirmed in the Constitutional Court in
Sidumo.1023 It is common cause that PAJA was enacted in order to give effect to s 33
of the Constitution.1024 Furthermore, in Bato Star, the Constitutional Court confirmed
that the validity of administrative action must be based on the grounds of review in
terms of s 6(2) of PAJA and not directly on s 33 of the Constitution.1025 However, in
finding that the PAJA is not applicable in the reviewing of arbitration awards, the
1022 Coetzee v Lebea [1998] ZALAC 26.1023 In Sidumo v Rustenburg Platinum Mines Ltd, the Supreme Court of Appeal found that PAJA applies to
review of arbitration awards by CCMA commissioners, this was however reversed in the ConstitutionalCourt.
1024 Nwauche “Administrative Bias in South Africa” 2005 Potchefstroom Electronic Law Journal 1-2.1025 Bato Star Fishing (Pty) Ltd v The Minister of Environmental Affairs and Tourism (2004) 4 SA 490 CC
para 25 states that “The cause of action for judicial review of administrative action now ordinarily arisesfrom PAJA, not from the common law as in the past. And the authority of PAJA to ground such causesof action rests squarely on the constitution.”
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Constitutional Court in Sidumo had regard to the need for expeditious labour dispute
resolution.1026 It was argued that if PAJA were to apply in labour review applications,
then the exclusivity of the Labour Courts would not be recognised and thus affording
even the High Courts to review arbitration awards.1027
5.6 The Test for Review Prior to Sidumo
5.6.1 The Carephone Test: Justifiability
The standard of review in s 145 proceedings has been controversial since the
establishment of CCMA and prior to Carephone, 1028 CCMA arbitrators were subject
to review on the basis of the procedural grounds provided for in s 145 of the LRA
only.1029 S 158(1)(g) of the LRA, provided that “despite s 145”, the Labour Court was
empowered to review the performance or purported performance of any function
provided for in the LRA or any act or omission of any person or body in terms of the
LRA on any grounds that are permissible in law. This provision seemed to undermine
the narrow grounds of review set out in s 145 and the 2002 Amendment to the LRA
changed the phrase to “subject to s 145” in an attempt to narrow the scope of
review.1030
In Carephone, the Labour Appeal Court was called to establish the nature and extent
of the courts’ powers of review over CCMA arbitration awards.1031 Before doing so, it
was necessary to determine whether review proceedings against arbitration awards
could be instituted under both sections 145 and 158(1) (g) of the LRA,1032 or whether
applicants were confined to bringing proceedings under section 145. The principal
1026 See in Sidumo, Ngcobo J finds that PAJA does not apply to reviews under section 145(2) of the LRA.He holds therefore that the ambit of the grounds of review under section 145(2) of the LRA must beinformed by section 33 of the constitution. He concludes that section 145 (2) is now suffused by theconstitutional standard of reasonableness which is implicit in the requirement of reasonableadministrative action in section 33.
1027 S 157(1) of the LRA mentions of the exclusivity of the Labour Courts in dealing with labour matters.1028 Carephone (Pty) Ltd v Marcus NO [1998] 11 BLLR 1093 (LAC).1029 Fergus and Rycroft “Refining Review” in Roux and Rycroft (eds) Reinventing Labour Law: Reflecting
on the First 15 Years of the Labour Relations Act and Future Challenges (2012) 176.1030 2002 Amendment Act to the LRA.1031 Carephone para 2.1032 S 158 and 145 of the LRA 66 of 1995.
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basis of the argument for the former was that section 145, in so far as it offered only
limited grounds of review,1033 and failed to give adequate effect to the parties’ rights to
just administrative action.1034 To circumvent this difficulty, section 158(1) (g) had
sometimes been construed as a permissible avenue for reviewing arbitration awards.
Froneman DJP rejected this approach as s 145(2)(a)(iii) was more than sufficient for
protecting parties’ rights in this regard and there was accordingly no need to permit
review under section 158(1)(g).1035 Furthermore, Froneman DJP revised these
grounds in accordance with the right to just administrative action and the constitutional
constraints imposed upon commissioners by s 24 of the Interim Constitution1036 hence,
permitting review in terms of s 158 (1)(g) would impede the expeditiousness and
informality with which CCMA proceedings were intended to be resolved.1037
In assessing whether commissioners had so exceeded their powers, reviewing courts
were to enquire whether there was a rational objective basis justifying the connection
made by the decision maker between the evidence available to him and the conclusion
he arrived at.1038 Froneman DJP emphasised that applying this standard to
commissioners’ award did not entitle reviewing courts to conduct an appeal and the
concept of justifiability did not equate to correctness.1039 Therefore the grounds of
review were extended from procedural to substantive grounds.1040
In Country Fair Foods,1041 the Labour Appeal Court (LAC) revived the so-called
reasonable employer test, the practical implication of which is that where the employer
can show that the sanction it imposed fell within a range of reasonable sanctions, and
the commissioner finds that sanction to be unfair, the award of the commissioner
1033 Carephone para 7. S 145 offers litigants only narrow, procedurally based grounds of review consistentlywith the purpose of the LRA to promote efficient dispute resolution, s 1(d) of the LRA.
1034 In terms of section 33 read with item 23(2) of Schedule 6 to the Constitution.1035 Smit “How Do You Determine a Fair Sanction? Dismissal as Appropriate Sanction in Cases of Dismissal
for (Mis) Conduct” 2011 De Jure 62.1036 S 24 (d) of the Constitution of South Africa Act 200 of 1993 provided administrative action to everyone
which is justifiable in relation to the reasons given for it where any of his or her rights is affected orthreatened. Further, failure to comply with these constrains constituted an excess of powers by thecommissioner concerned.
1037 Carephone paras 24-29.1038 Carephone para 37.1039 Ibid para 32. See also para 35 which stipulated that “When the Constitution requires administrative
action to be justifiable in relation to the reasons given for it, it thus seeks to give expression to thefundamental values of accountability, responsiveness and openness. It does not purport to give courtsthe power to perform the administrative function themselves, which would be the effect if justifiability inthe review process is equated to justness or correctness.”
1040 Carephone para 30.1041 County Fair Foods (Pty) Ltd v CCMA (1999) 20 ILJ 1701 (LAC).
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becomes reviewable.1042 Rather, it was said by Ngcobo AJP in Country Fair Foods
that the mere fact that the commissioner may have imposed a somewhat different
sanction than the employer would have, is no justification for interference by the
commissioner.
5.6.2 The Rationality or Justifiability Test
The LAC in Shoprite Checkers (Pty) Ltd v Ramdaw NO,1043 found that the test for a
review was not justifiability but rather rationality. It also found that the two concepts of
justifiability and rationality are closely related that the approach adopted in Carephone
decision still applied. The rationality or justifiability test enabled the Labour Court to
take a fairly interventionist approach to CCMA awards if it felt that this was necessary.
The Labour Appeal Court in Ramdaw NO1044 essentially confirmed the Carephone
decision, finding that an award may be set aside if it is irrational, but that the court
could not interfere with the decision simply because it disagreed with it. The court
went on to hold that although the terms justifiable and rational may not, strictly
speaking, be synonymous, they bear a sufficiently similar meaning to justify the
conclusion that rationality can be said to be accommodated within the concept of
justifiability as used in Carephone because a decision that is justifiable, cannot be said
to be irrational, and a decision that is irrational, cannot be said to be justified.
5.7 The Test for Review in Sidumo
5.7.1 The Test of Reasonableness
In terms of Sidumo,1045 the grounds for reviewing awards set out in s 145 of the LRA
are suffused by reasonableness.1046 This was found in the light of the change in the
1042 Landman 2008 Industrial Law Journal 1613.1043 Shoprite Checkers (Pty) Ltd v Ramdaw (2001) 22 ILJ 1603 (LAC).1044 (2001) 22 ILJ 1603 (LAC).1045 Sidumo and others v Rustenburg Platinum Mines Ltd and [2007]12 BLLR 1097 (CC).1046 The court in Sidumo para 105 held that the requirement of reasonableness must be suffused into the
statutory grounds of review. The court reiterated that section 145 must be interpreted in compliance
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wording of the final Constitution.1047 In terms of this approach a CCMA award is
reviewable if the reasoning of the commissioner, based on the material before him or
her, results in a conclusion that a reasonable decision maker could not reach.
In Sidumo, the employee had been employed as a security officer at Rustenburg
Platinum Mines. His job entailed the conducting of searches of persons leaving a high
security to prevent theft of the valuable metals. The employee was dismissed for
failing to execute his duties culminating in metals being stolen. The commissioner
concluded that dismissal was too harsh a sanction and that there had been no losses
suffered by the mine and ordered that Sidumo be reinstated with three months
compensation and be given a written warning effective for three months. The mine
applied to the Labour Court with the contention that the commissioner had erred in
concluding that no losses had been suffered and that the violation of the rule had been
unintentional. The Labour Court considered that employees who perform poorly but
who had not been dishonest should not automatically face dismissal. The Court
considered into account Sidumo’s clear service record and went on to consider the
test for review of a commissioner’s award as enunciated by the Labour Appeal Court
in Carephone.1048 The Labour Court concluded with reference to the grounds of review
as set out in section 145 of the LRA and the test in Carephone, that there was no basis
upon which it could interfere with the commissioner’s award.
On appeal, the Labour Appeal Court concluded that Mr Sidumo’s clean lengthy service
record was capable of sustaining the finding that the sanction of dismissal was too
harsh and dismissed the appeal. However on a further appeal to the Supreme Court
of Appeal, the Court held that the commissioner failed to appreciate the ambit of his
duties under the LRA and therefore incorrectly approached the task entrusted to him
in determining whether the employer’s decision was fair. The Supreme Court of
Appeal then referred with approval to Carephone, where the application of section 145
and 158(1) (g) was discussed and stated that the Labour Appeal Court in Carephone
was not prepared to hold that section 158(1)(g) created a separate and more
expansive basis of review of CCMA awards. It held that the administrative justice
with the Constitution. It ruled further that section 145 must be read to ensure that administrative actionby the CCMA is lawful, reasonable and procedurally fair.
1047 The Constitution of South Africa 1996.1048 [1998] 11 BLLR 1093 (LAC).
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provisions of the constitution suffused the grounds of review under section 145 of the
LRA, thereby extending the scope of review of CCMA awards.
However the Constitutional Court in Sidumo then examined the Carephone test, more
particularly, that an award must be justifiable in relation to the reasons given for it.
Section 33(1) of the Constitution presently states that everyone has the right to
administrative action that is lawful, reasonable and procedurally fair. The reasonable
standard should now suffuse section 145 of the LRA. The reasonableness standard
was dealt with in Bato Star,1049 and the Constitutional Court recognised that scrutiny
of a decision based on reasonableness, introduced a substantive ingredient into
review proceedings. Applying section 145 will give effect not only to the constitutional
right to fair labour practice, but also to the right to administrative action which is lawful,
reasonable and procedurally fair.
The court found that PAJA does not apply to reviews under section 145(2) of the LRA.
The court further held that the ambit of the grounds of review under section 145(2) of
the LRA must be informed by section 33 of the Constitution.1050 The court further held
that section 145(2) is now suffused by the constitutional standard of reasonableness
which is implicit in the requirement of reasonableness action in section 33. Applying
this standard, the court concluded that the arbitral award of the commissioner should
not be disturbed. However the Constitutional Court in Sidumo held that the test for
determining whether arbitration awards are reasonable or unreasonable is whether
the commissioner’s decision or finding is one that a reasonable decision-maker could
not reach. The question is not whether the award or decision is one that a reasonable
decision-maker would not reach. A court in deciding the reasonableness of a decision,
is not whether the dismissal is fair or not, but whether the commissioner’s decision is
one that a reasonable decision-maker could not have reached in all of the
circumstances. Awards will be final and binding unless such decision or award is one
that a reasonable decision-maker could not have made in all circumstances.1051
1049 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism (CCT 27/03) [2004]ZACC 15.
1050 S 33 of the Constitution buttresses the just administrative action.1051 Sidumo para 105.
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5.8 The Aftermath and Departure of Sidumo Test
5.8.1 Gaga v Anglo Platinum Ltd (2012) 33 ILJ 329 LAC; [2012] 3 BLLR 285 (LAC)
In this case, the dismissed employee was found not guilty of the alleged misconduct
following a reinstatement in a CCMA arbitration award. However, the Labour Court in
review set aside the decision of the arbitrator. The employee then appeals to the
Labour Appeal Court and it was tasked to establish whether there was a rational basis
justifying the commissioner’s conclusion that there was no sexual harassment
committed by the manager. In the Labour Appeal Court, it was held that the
commissioner had ignored relevant considerations and failed to apply his mind
properly to material evidence and to the definitional elements of the offence in
accordance with the code of good practice.1052 The Labour Appeal Court further held
that where a commissioner fails to properly apply his mind to the material facts, and
misconstrue the scope of a relevant rule, he will inevitably fail to determine fairly the
matter before him.1053 Furthermore, the outcome of such commissioner becomes
tainted with dialectical unreasonableness which leads to substantive
unreasonableness.1054
In light of the above, it follows therefore that an error in the process alone, is enough
to set aside the award on the grounds of latent gross irregularity without even
considering substantive unreasonableness which was formulated in Sidumo.1055 The
Labour Appeal Court in cementing its finding, cited the dictum of Ngcobo J in his
minority judgment in Sidumo which stated that:
“…where a commissioner fails to have regard to material facts, the arbitrationproceedings cannot, in principle, be said to be fair because the commissioner fails toperform his or her mandate. The commissioner’s action prevents the aggrieved partyfrom having its case fully and fairly determined. This constitutes a gross irregularity in
1052 Gaga v Anglo Platinum Ltd [2012] 3 BLLR 285 (LAC) para 43.1053 [2012] 3 BLLR 285 (LAC) para 44.1054 Dialectical unreasonableness is process related unreasonableness whilst substantive
unreasonableness is result related which means it is an unreasonable outcome. See also Myburgh“The LAC’s Latest Trilogy of Review Judgments: Is the Sidumo Test in Decline?” 2013 Industrial LawJournal 20.
1055 The Labour Appeal Court in Gaga concluded that unreasonable process failure itself is enough towarrant a review.
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the conduct of the arbitration proceedings, as contemplated in s 145(2) (a) (ii) of theLRA. And the ensuing award falls to be set aside not because the result is wrong butbecause the commissioner has committed a gross irregularity in the conduct of thearbitration proceedings”.1056
5.8.2 Afrox Health Ltd v Commission for Conciliation, Mediation and Arbitration (2012)
33 ILJ 1281 (LAC); [2012] 7 BLLR 649 (LAC)
In this case, the dismissal of an employee was found to be unfair and the CCMA award
ordered reinstatement. The company launched a review application in the Labour
Court and it was dismissed. This brings us to the Labour Appeal Court where it was
held that the commissioner failed to take a proper look out on material evidence placed
before him.1057 In support of its finding, the Labour Appeal Court reiterated the dictum
of Ngcobo J in his minority judgment from the case of Minister of Health and another
v New Clicks,1058 which stated that:
“There is obviously an overlap between the ground or review based on failure to takeinto consideration a relevant factor and one based on the unreasonableness of thedecision. A consideration of the factors that a decision-maker is bound to take intoaccount is essential to a reasonable decision. If a decision maker fails to take intoaccount a factor that he or she is bound to take, the resulting decision can hardly besaid to be that of a reasonable decision-maker”.1059
In light of the above, the Labour Appeal Court held that the commissioner failed the
Sidumo test in that the said commissioner failed to apply his mind to material evidence
before him which had a bearing on the outcome hence award irrational and
unreasonable.1060
5.8.3 Herholdt v Nedbank Ltd (2012) 33 ILJ 1789 (LAC)
1056 Sidumo para 110.1057 Afrox Health Ltd v Commission for Conciliation, Mediation and Arbitration [2012] 7 BLLR 649 (LAC)
para 16.1058 Minister of Health and another v New Clicks SA (Pty) Ltd (Treatment Action Campaign and another as
Amici Curiae) 2006 (2) SA 311 (CC).1059 2006 (2) SA 311 (CC) para 511 and also [2012] 7 BLLR 649 (LAC) para 21.1060 [2012] 7 BLLR 649 (LAC) para 17.
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In this case a dismissed employee was found not guilty of misconduct following a
reinstatement in the CCMA arbitration award. However on review, the Labour Court
found the employee guilty and was subsequently dismissed. The employee then
appealed to the Labour Appeal Court and the court had to decide whether the Labour
Court had correctly applied the review test in setting aside the award.1061 The Labour
Appeal Court held that the legal approach adopted by the Labour Court was correct
and consistent with the law.1062 The Labour Appeal Court went on to find that the
commissioner failed to take account of relevant considerations and misplaced her
mind to the facts and law of evidence.1063 The court further found that failure by a
commissioner to consider material facts resulted in an unfair adjudication of the
dispute, rendering an award unreasonable.1064
This court showed that when a commissioner fails to consider a relevant fact that
potentially causes an unreasonable result, the award can be set aside. Therefore in
showing the distinction between an appeal and a review, one need not to show
substantive unreasonableness but a mere potential of prejudice caused by the
commissioner’s failure to consider a material fact.1065 In this similar fashion, according
to Myburgh, it becomes easier to succeed on review than on appeal.1066 This further
contradicts the objectives of the legislature in that labour disputes must not be lightly
interfered with and resolved expeditiously.1067
5.9 The Revisit of Sidumo Test
5.9.1 Herholdt v Nedbank Ltd (2013) 34 ILJ 2795 (SCA)
1061 Herholdt v Nedbank Ltd (2012) 33 ILJ 1789 (LAC) para 33. The Labour Court had found that thecommissioner had committed a series of process related errors. An award is reviewable if it suffers fromdialectical unreasonableness or substantive unreasonableness.
1062 Herholdt para 41.1063 Herholdt para 48.1064 Herholdt para 39. This leads to the commissioner misconstruing the material evidence before him,
which has the potential for prejudice and possibility that the result may be different.1065 Boyens Sidumo Revisited (LLM-thesis, NMMU, 2015) 37.1066 Myburgh “The Test for Review of CCMA Arbitration Awards: An Update” 2013 Contemporary Labour
Law 33.1067 Preamble to the LRA, s 1(d) of the LRA. See also Myburgh 2013 Contemporary Labour Law 34.
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This Supreme Court of Appeal attempted to restore the stringent test of Sidumo which
had been threatened by the trilogy of cases above. This case attempted to rectify the
broad test established by the trilogy and developed a stricter approach based on the
true intention of the legislature.1068 More so, in the quest of preserving the distinction
between appeals and reviews and ensuring that CCMA awards are not lightly
interfered with, the correct interpretation of s 145(2) (a) and (b) of the LRA as well as
the sidumo test had to be emphasised. This misapplication of the sidumo test
encouraged applicants to base their review application on gross irregularity or
dialectical unreasonableness.1069 In finding that the Labour Appeal Court had erred in
its development of the review test, the Supreme Court of Appeal took into
consideration the historical meaning of gross irregularity and the proper interpretation
of the sidumo test.1070
The drafters of the LRA with the intention of realising a speedy resolution of labour
disputes, envisaged such stringent grounds encapsulated in s 145(2) to deter
disputants challenging arbitration awards.1071 In addition, one of the narrow grounds
in s 145(2) is gross irregularity,1072 which concerns the conduct of proceedings and
not the merits of the decision. So commissioners commit gross irregularity when they
misconceive the whole nature of the enquiry and as a result, misconceive their
mandate of duties in conducting an enquiry.1073 The Supreme Court of Appeal
illuminated the operation of sidumo test as the holistic examination by the reviewing
court of all merits and consequently evaluating whether the award was one that a
reasonable decision maker could not reach.1074
Furthermore, cognisant of the reasoning of the commissioner, the reviewing court
should ascertain whether the decision reached by such commissioner could have
reasonably been reached by taking such a route.1075 The Supreme Court of Appeal
1068 It is the intention of the LRA to have labour disputes resolved expeditiously.1069 The Labour Appeal Court established the lightest test for prejudice and concluded that an award can
be set aside on either gross irregularity or dialectical unreasonableness without need to establish thesidumo test.
1070 Myburgh 2013 Contemporary Labour Law 31.1071 If awards are lightly interfered with, this will undoubtedly impede upon the inexpensive and expeditious
resolution of dispute. See also Herholdt para 9.1072 S 145(2) (a) (ii) of the LRA 66 of 1995.1073 Herholdt para 10.1074 Herholdt para 12.1075 Awards should not be simply set aside because the reviewing court could have reached a different
conclusion.
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realised that to limit interference of awards, emphasis need to be placed on the result,
thus whether the award was one that a reasonable decision-maker could not reach
hence preserving the distinction between review and appeal. More so, the reviewing
court should avert from setting aside arbitration awards simply for not coinciding with
the judge’s own opinions.1076 In support of its finding, the Supreme Court of Appeal
referred to the judgment of Fidelity Cash Management Service v CCMA,1077 and held
that an award should be set aside if the decision is disconnected with evidence or
unsupported by any evidence and involves speculation by the decision-maker.1078
In countering the court a quo’s analysis of latent irregularity and dialectical
unreasonableness, the Supreme Court of Appeal defined latent irregularity as failure
by arbitrator to take into account a material fact or taking into account an irrelevant
fact when determining arbitration.1079 The court further disregarded Ngcobo J’s dictum
in the minority judgment of Sidumo, as such an approach is not compatible with the
intention of the LRA.1080 Even though the Supreme Court was critical of the court a
quo’s development of the review test, it nevertheless uphold its judgment that the
award failed the sidumo test.1081 However a party cannot succeed a review by simply
relying on failure by the commissioner to apply his mind to material facts, but such
applicant has to establish that the outcome was unreasonable.1082
However, Kleu and Govindjee argue that to determine the irrationality of the decision,
it requires a scrutiny of both the outcome and the reasons for the outcome.1083 These
authors debate that the irrationality of a decision can be established by two tests.
Firstly, they state that it needs to be determined if the outcome is obviously
unreasonable or defies comprehension.1084 If it is, the decision is reviewable on the
basis of irrationality even though it is not necessarily clear from the reasons where the
1076 Herholdt para 13.1077 Fidelity Cash Management Service v CCMA (2008) 29 ILJ 964 (LAC)1078 Herholdt para 13.1079 Herholdt para 16.1080 Herholdt para 19. See also the Supreme Court of Appeal rejected the Labour Appeal Court’s
interpretation based on Ngcobo J’s dictum in Minister of Health V New Clicks South Africa (Pty) Ltd2006 (8) BCLR 872 (CC) para 511 and found that the dictum related to the provisions of PAJA which isincompatible with the review of CCMA awards.
1081 Myburgh 2013 Contemporary Labour Law 36. See also Herholdt para 25.1082 Myburgh 2013 Contemporary Labour Law 35.1083 Kleu and Govindjee 2014 Industrial Law Journal 1795.1084 Ibid.
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decision maker erred.1085 They further argued that a decision will be reviewable,
despite rational and coherent reasons, where the outcome:
“Bears no relation to the relevant considerations that were taken into account and theirrelevant factors that were disregarded or is so unreasonable in relation to the relevantconsiderations that were taken into account and the irrelevant factors that weredisregarded that the decision maker must have been motivated by otherconsiderations.”1086
The above argument is interesting in that a reasonable and logical reasoning can
sometimes leads to an unreasonable decision. The researcher then questions how a
rational reasoning process leads to an irrational result or outcome? Or a defect in
reasoning process leads to a reasonable decision?
The second test proffered by Kleu and Govindjee1087 is that if the outcome is not clearly
unreasonable or does not flout comprehension, the decision may nevertheless be
irrational if the reasons of the decision is preceded by flawed logic. They further allude
that the reasoning process will be irrational if it amounts to an unreasonable balancing
of relevant considerations, lacks logic or comprehensible justification, or demonstrates
that the decision maker interpreted his or her authoritative power incorrectly or
erroneously assessed the facts and circumstances.1088
5.9.2 The Legal Effect of a Review as of Date
In terms of s 145(3) of the LRA, The Labour Court may stay the enforcement of the
award pending its decision. Furthermore, if the award is set aside, the Labour Court
may determine the dispute in the manner it considers appropriate; or make any order
it considers appropriate about the procedures to be followed to determine the
dispute.1089 However, in terms of s 145 (7) and (8):
“(7) The institution of review proceedings does not suspend the operation of anarbitration award, unless the applicant furnishes security to the satisfaction of the Courtin accordance with subsection (8).(8) Unless the Labour Court directs otherwise, the security furnished as contemplatedin subsection (7) must-
1085 Ibid.1086 Kleu and Govindjee 2014 Industrial Law Journal 1796.1087 Ibid.1088 Ibid.1089 S 145(4) (a) and (b).
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In the case of an order of reinstatement or re-employment, be equivalent to 24 monthsremuneration; orIn the case of an order of compensation, be equivalent to the amount ofcompensation awarded”.
There is no doubt that s145 has been amended with the intent to limit frivolous review
by employers who review matters to allow the matter to die at Labour Court due to an
employee’s lack of funding and other factors. The Act has been amended to provide
that 24 months security is required to be paid by an employer pending the review of a
matter where reinstatement has been awarded. Where compensation has been
granted, an amount equal to such compensation would need to be paid. However,
there are some scholars who argue that such amendments tend to limit or infringe on
the constitutional right of access to courts due to additional costs. In the same fashion,
this raises debates about the constitutionality of the provision vis-à-vis access to
labour forums and courts.
5.10 Conclusion
Choosing narrow grounds for review was aimed at discouraging reviews save in
extreme cases. The limited scope for interfering with arbitration awards under those
provisions has been asserted time and again yet from the inception of the LRA, courts
tried to broaden the scope of review.1090 Arbitration awards which are supposed to
contain no more than brief reasons were examined microscopically, with any flaw in
the reasoning process leading to the award being set aside.1091 In Sidumo, the
Constitutional Court characterized CCMA arbitrations as administrative action.1092
That was done without any challenge to the constitutional legitimacy of s 145(2) and it
created an additional ground for review which is whether the decision reached by the
decision-maker, is one that a reasonable decision-maker could not have reached, thus
going beyond the provisions of the LRA.
1090 Ibid.1091 Rustenburg Platinum Mines Ltd (Rustenburg Section) v Commission for Conciliation, Mediation and
Arbitration 2007 (1) SA 576 (SCA); (2006) 27 ILJ2076 (SCA).1092 The construction Ngcobo J gave in his minority judgment to s 145(2) was unwarranted in Sidumo v
Rustenburg Platinum Mines Ltd 2008 (2) SA 24 (CC); (2007) 28 ILJ2405 (CC). See also ShopriteCheckers (Pty) Ltd v Ramdaw NO 2001 (3) SA 68 (LC); (2000) 21 ILJ 1232 (LC).
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Sidumo widened the scope of review considerably beyond the intended reach of s
145(2) and once the door opened a crack, disgruntled parties, principally employers,
sought to push it open further.1093 They were aided by the chronic obscurity of the
statement in Sidumo that under the provisions of s 145(2) of the LRA must be suffused
by the constitutional requirement of reasonableness.1094 In his article, Wallis refers to
Professor Rycroft who pointed out that in 2010, over 10,000 cases were referred to
the Labour Courts and, on his own analysis, 46% of cases before the Labour Court
were reviews of CCMA arbitral awards.1095 Delays often exacerbated by appeals,
undermine the purpose of the LRA, and to a greater extent, this has been due to courts
expanding the grounds of review beyond their intended limits.
The next chapter, discusses the findings and conclusions and seeks to offer tangible
recommendations to assist policy makers in the upgrading of dispute resolution
mechanisms in South Africa.
1093 Wallis 2014 Industrial Law Journal 857.1094 Sidumo para 110.1095 Wallis 2014 Industrial Law Journal 858.
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CHAPTER SIX
6. FINDINGS, CONCLUSIONS AND RECOMMENDATIONS
6.1 Introduction
Chapter 1 made it clear that the aim of this study is to illuminate the shortcomings in
the current labour dispute resolution and propose recommendations that provides for
a just, informal, affordable, effective and expeditious settlement of disputes. By kick
starting this quest, chapter 2 discussed the historical perspectives of labour relations
and dispute resolution from pre 1924 to post 1994 era. In addition, chapter 3 explored
the international instruments that South Africa has to adhere to. Moreover, chapter 4
was largely an analysis of the dispute resolution under the LRA of 1995. Additionally,
chapter 5 devoted attention on the review of CCMA arbitration awards. It is in this
chapter where the test for reviewing CCMA arbitration awards was scrutinised. Given
the challenges faced by dispute resolution mechanisms such as increase in case load
at CCMA, involvement of labour lawyers and high reviews at Labour Courts, common
sense demands that some recommendations be made for the purposes of law
reforms. It is against the background of this chapter, that the researcher attempts to
proffer some findings and recommendations which might be of use for the betterment
of South African employees and the dispute resolution structure.
6.2 Findings
6.2.1 Internal Mechanisms
A large referral of cases to external bodies such as the CCMA is a sign that the internal
mechanisms such as the workplace forums and disciplinary hearings which are
supposed to bring a panacea to disputes are not operating successfully as intended.
It seems internal dispute resolution mechanisms are not used properly or fully
understood. For example, the introduction of workplace forums was meant to promote
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an effective dialogue and joint making decisions over specific matters between
employers and employees. However, workplace forums have failed pitifully in South
Africa and in practice, very few forums were established. This is because trade unions
fear that the establishment of the workplace forum would duplicate or dilute its existing
activities. In addition, the management seem to be protective of its prerogatives and
is not ready to imagine that workers can contribute to resolving workplace problems.
Another internal factor that delays the resolution of employment disputes is the
replacement of labour by employers to striking employees. For the safety of the
employer’s premises, and in response to striking employees, the employer is permitted
to make use of replacement labour in terms of s 76 1 (b) of the LRA. Furthermore in
terms of s 67(3) of the LRA, it provides that an employer is not obliged to remunerate
an employee for services that the employee does not render during a protected strike
or protected lock-out.1096 The constitutional right to strike seems to be weakened by
this replacement of labour as the employers simply replace striking employees rather
than attempting to reach a resolution. It should be kept in mind that the aim of a strike
is to persuade the employer, through peaceful withdrawal of labour, to agree to the
employees’ demands. Employees see this provision as a severe limitation standing
on their way towards the betterment of wages and living conditions.1097 Not only
replacement of labourers but also employees who do not participate in the strike action
and keep working are also victims of violence by strikers.1098
More so, pre-dismissal arbitration which takes the place of a disciplinary hearing at the
request of an employer, with the employee’s consent, invites a commissioner to
conduct a pre-dismissal arbitration to establish whether the employee is guilt and apply
a proper sanction.1099 However, the downside of pre-dismissal is that it is not for free,
1096 As it currently stands, when employees embark on a strike, whether protected or unprotected, they arein breach of their contract of employment. This may cause strife between employees who are on strikeand those who are not yet employed by the same employer. Non-striking employees may want tohonour their contractual obligations which may be perceived as sabotage by striking employees.
1097 Calitz 2016 South African Mercantile Law Journal 459.1098 Calitz 2016 South African Mercantile Law Journal 441. Also see cases of FAWU obo Kapesi v Premier
Foods Limited (C640/07) [2010] ZALC 61 and Ntimane v Agrinet t/a Vetsak (Pty) Ltd (J3202/98) [1998]ZALC 98.
1099 S 188A of the LRA the heading of this section is now substituted by section 32(a) of Act 6 of 2014 fromAgreement for pre-dismissal arbitration to Inquiry by arbitrator. See also Du Plessis v Cape PeninsulaUniversity of Technology Case No C817/2014 para 5.
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which means if disputants have shallow pockets, it is unlikely to benefit from this type
of resolution.
6.2.2 The Commission for Conciliation, Mediation and Arbitration (CCMA)
One of the salient provisions of the LRA is to create mechanisms that will enable
speedy and effective resolution of disputes. Conciliation is made compulsory in
resolving disputes and this creates problems as employers do not show up. This
results in a certificate of non-resolution being issued culminating in unnecessary
clogging up of the system. Contrary to conciliation process, the arbitrator must make
a decision on the fairness of the dismissal within 14 days after hearing a matter.
During these proceedings, the current legal system is welcoming lawyers in dispute
resolution process rather than denying them. It is undoubted however that lawyers
make a process legalistic and expensive.
Furthermore, the arbitration process has assumed a very legalistic and sophisticated
character to resolve a dispute.1100 The involvement of legal representatives inevitably
brought about formalised and technical arguments and a strict observance of
procedures.1101 So the intervention of lawyers raises questions of affordability and
expeditiousness because the CCMA was created to deal with indigent parties at no
cost and without the need of legal assistance.1102 As pointed earlier, it is undoubted
that lawyers turn the whole process into a court as they raise points in limine1103 which
has an effect of causing postponements. This is not in harmony with achieving
simplicity because the CCMA was meant to resolve disputes in a manner that seeks
to avoid technicalities and delays caused by postponements which are a dominant
feature in litigation courts.
The other issue of concern is the increase in number of referrals to the CCMA per
annum. The ever-increasing caseload of the CCMA will keep challenging the CCMA's
capacity. This impedes resolution of disputes leading to wildcats strikes and economy
1100 Van Zyl et al 233.1101 Bendeman 2007 African Journal on Conflict Resolution 143.1102 Ibid.1103 It is a preliminary point which is offending made by another party before trial begins.
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decline. Work overload reduces the effectiveness of commissioners as they are
required to conciliate and arbitrate three to six cases a day. Due to the large number
of conciliations scheduled for each commissioner every day, commissioners do not
have enough time to conciliate cases properly and therefore do not have the time to
address the causes and underlying issues of a dispute. Although the conciliation
process is a first step towards dispute settlement, parties seem to be reluctant to have
their disputes settled at this stage.
In an attempt to save time often wasted if there is a deadlock in resolution of a dispute
during conciliation, arbitration sets in immediately on that same day with the same
conciliator and this is known as con-arb. Although con-arb seem to increase pressure
on parties to reach settlement, an arbitrator is prohibited to take information shared in
the conciliation into account when determining the matter in arbitration.1104 This
inhibits speedy resolution of disputes as the hearing starts de novo. Furthermore, a
conciliator who has failed to conciliate a dispute cannot be expected to arbitrate it
successfully during arbitration unless there is another arbitrator chosen to perform the
task.
6.2.3 The Bargaining Councils and Collective Bargaining
The greatest benefit from collective bargaining can be obtained when a system in
place promotes good faith bargaining and efficient enforcement of collective
agreements.1105 However, if the bargaining process is misunderstood, misinterpreted
and mismanaged, the negotiations will not yield any meaningful results and it may take
time to resolve disputes.1106 The fundamental function of a trade union is to engage
in the process of collective bargaining with employers on behalf of their members as
well as providing representation in disciplinary proceedings.1107 The independence of
a trade union is vital as it ensures that it operates as a body that is free from any bias
or undue influence. The best interests of employees can only be appropriately
obtained if a union can acquire the trust, cooperation and dependence of its members.
1104 Bosch et al 79.1105 Botha 2015 Potchefstroom Electronic Law Journal 1813.1106 Bendix 631.1107 Grogan Employment Rights (2010) 35.
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This will only come about if members are convinced that their representatives will
always act on their behalf without prejudicing their interests. The LRA attempts to
assist in acquiring the trust of members by ensuring that a trade union does not
undertake its duties for its own benefit.1108
By engaging in collective bargaining, parties would be able to resolve disputes
amicably and speedily rather than resorting to strikes and lock-outs.1109 However the
study shown that trade unions seem to be disconnected to the aspirations of its
employees. Trade unions have been engaging in bad faith bargaining and this also
explains why they have been reluctant to approve the establishment of workplace
forums. The researcher believes that the Marikana strife would have been avoided if
the collective bargaining was effective and also if workplace forums were established.
6.2.4 Labour Courts and Review of CCMA Arbitration Awards
In chapter 5, grounds for reviews in terms of s 145 and 158(1) (g) were outlined.
However there has always been a question of whether s 158(1) (g) is applicable to
reviews of arbitration awards. Additionally, review in terms of s 145 provides a limited
ground of review, whilst s 158(1) (g), provides for review on wider grounds or on
grounds permissible by law. It was agreed that unlike s 158 (1) (g), s 145 provides
finality in dispute resolution and an arbitrator is required to give due consideration to
the issues, to apply his or her mind thereto and to come to a reasoned conclusion.
Failure to do so may constitute misconduct, a gross irregularity, an excess of powers
and an award being improperly obtained. These grounds of review from cases
discussed in chapter 5 tend to overlap. For example, a ground of review on gross
irregularity can be framed as a misconduct by the commissioner. This creates
confusion as to which ground of review is an aggrieved party relying on. Despite this
confusion, it was however interesting to note that an irregularity may be patent or
latent. An irregularity that takes place openly, as part of the conduct of the trial, are
called patent irregularities, whilst those that take place inside the mind of the decision-
maker, are termed latent.
1108 Adigun 2014 Journal of Emerging Trends in Economics and Management Sciences 29.1109 Pep Stores (Pty) Ltd v Laka No (1998) 19 ILJ 1534 (LC).
149
Besides, South African Courts formulated tests for the standard to be used in
determining whether or not there is a ground for reviewing a decision of a CCMA
commissioner. Initially, the grounds in s 145(2) were narrowly interpreted to be
procedural in nature in line with s 33 (1) of the Arbitration Act 42 of 1965 as applied in
private arbitration award reviews.1110 Prior to Carephone, the absence of a causal
connection between the evidence and the conclusion, was not regarded as a
defect.1111 In Carephone, the court determined that the interpretation of s 145 was
influenced by justifiability in accordance with the right to just administrative action in s
33 of the Constitution.1112 The court further held that commissioners would exceed
their powers under s 145(2) (a) (iii) of the LRA if their actions were not justifiable in
terms of the reasons given.1113 The first test of justifiability or rationality was
formulated in Carephone.1114 According to the justifiability or rationality test, there
must be a rational objective basis justifying the connection made by the commissioner
between the material property available and the conclusion eventually arrived at.1115
Moreover, the test of irrationality was developed in Shoprite v Ramdaw.1116 The
Labour Appeal Court in Shoprite essentially confirmed the Carephone decision, finding
that an award may be set aside if it is irrational, but that the court could not interfere
with the decision simply because it disagreed with it.1117 However, the court in
Sidumo1118 came with a different test for review of arbitration awards. According to
Sidumo, the standard to be applied when a decision of a commissioner in a dismissal
dispute is sought to be reviewed is whether the decision reached by the commissioner
is one that a reasonable decision maker could reach.1119 The Supreme Court of
Appeal in Sidumo referred with approval to Carephone, where the application of s 145
and 158(1) (g) was discussed and stated that the Labour Appeal Court in Carephone
was not prepared to hold that s 158(1)(g) created a separate and more expansive
basis of review of CCMA awards. It held that the administrative justice provisions of
1110 Kleu and Govindjee 2014 Industrial Law Journal 1778.1111 Ibid.1112 Kleu and Govindjee 2014 Industrial Law Journal 1779.1113 Carephone para 37.1114 [1998] 11 BLLR 1093 (LAC.1115 Kleu and Govindjee 2014 Industrial Law Journal 1779.1116 Shoprite Checkers (Pty) Ltd v Ramdaw NO (2001) 22 ILJ 1603 (LAC).1117 Kleu and Govindjee 2014 Industrial Law Journal 1780.1118 Sidumo and others v Rustenburg Platinum Mines Ltd [2007]12 BLLR 1097 (CC).1119 Sidumo paras 105, 110.
150
the constitution suffused the grounds of review under section 145 of the LRA, thereby
extending the scope of review of CCMA awards.
The Constitutional Court in Sidumo noted that the test on review is not whether the
dismissal is fair or not, but whether the commissioner’s decision is one that a
reasonable decision-maker could not have reached in all of the circumstances. The
researcher feels that this standard of reasonableness can raise more questions than
answers especially where it was highlighted that review is not about the fairness of a
decision but that of reasonableness. Some of the concerns are whether it is possible
for a decision-maker to reach a reasonable decision which is however unfair? Or can
a decision which is fair be unreasonable? However it was held that Sidumo test is a
stringent test that will ensure that arbitration awards are not lightly interfered with. The
researcher however feels that the decision of Arbitrators and Judges should not end
at being merely reasonable, they should satisfy the requirement of fairness.1120
6.2.5 The Labour Relations Amendment Act 6 of 2014
The amended s 145(5) of the LRA provides that a person who institutes a review
application must arrange for the matter to be heard by the Labour Court within six
months of commencing proceedings. However, the Labour Court has been given the
power to condone a failure to comply with this provision upon good cause shown.
Furthermore, s 145(6) Judges are required to hand down judgment in
review applications as soon as reasonably possible. This provision reiterates the need
for the speedy resolution of review applications. One of the original aims of the current
LRA has been the speedy resolution of labour disputes however this aim has sadly
not been realised.
As things currently stand, instituting a review application does not automatically
suspend the operation of an arbitration award. In the normal course, an employee
who has obtained relief under an arbitration award is entitled to enforce that award
unless the employer brings an urgent application in the Labour Court to stay the award
pending the outcome of the review application. In the similar fashion, s 145(7) and (8)
1120 Mahapa and Watadza 2015 Journal of Human Resources Management and Labor Studies 69.
151
dispense with the necessity of approaching the Labour Court to stay the execution of
an arbitration award. This means operation of an arbitration award will automatically
be suspended once an application to review the award has been launched. However,
this suspension is conditional upon the applicant furnishing security to the satisfaction
the Court.
Unless the Court directs otherwise, the security which the applicant is required to
furnish must be equivalent to 24 months’ remuneration in the case of an award
granting reinstatement or re-employment, and equivalent to the amount of
compensation granted in the award. These provisions are intended to discourage
CCMA litigants from availing themselves of review proceedings merely for the
purposes of delay. Furthermore, a litigant would have to be fairly confident of its
prospects of success if it is willing to put up as much as 24 months’ security and this
may however discourage an indigent employee who might have a legitimate case.
Clarity is still required on practical details relating to some of these amendments. For
instance, the exact manner of furnishing security is not specified.
6.3 Recommendations
6.3.1 Internal Mechanisms
In the event that trade unions are reluctant to facilitate the establishment of workplace
forums, there should be an enabling legislation which permit its establishment even
without the approval of trade unions, provided an organisation has more than 100
employees. The purpose of workplace forums is not to undermine collective
bargaining but to enhance it, especially in situations where collective bargaining is not
well suited. Furthermore, in disciplinary hearings, Training in labour relations should
also extend to employers especially those at the managerial levels who deal with
disciplinary issues and the shop stewards who represent the employees.1121 Matlou
recommends other employment practitioners such as human resource managers,
employee relations officers and trade union officials to engage robustly in social justice
1121 Ibid.
152
issues at collective bargaining forums, workplace forums and dispute resolution
tribunals.1122 Matlou further advances that social justice must continue to be an issue
of concern to everyone in the labour arena and not limited to lawyers and
academics.1123
6.3.1.1 Replacement of Labour
Since the provision of replacement of labour in terms of s 76 (1) (b) of the LRA does
not yield healthy labour relations between employees themselves,1124 that provision
should be revisited and reviewed in order to cater for or adapt to prevailing social
conditions and circumstances.1125 The legislature may be expected to amend the
section that regulates the use of replacement labour to ensure that the interests or
concerns of all parties that may feel affected by it are addressed. Furthermore, the
legislature may consider deleting the provision regulating the use of replacement
labour because it seems biased towards employers.1126 For example, under normal
circumstances, it is the employees who initiate the strike as they are the ones who feel
the heat in the workplace.1127 It is very rare that the employer initiates the locking out
of employees, an act which prohibits it from hiring replacement labour.1128 The
researcher shares similar sentiments with Tenza1129 that a proper regulation of the use
1122 Matlou 2016 South African Mercantile Law Journal 561.1123 Matlou 2016 South African Mercantile Law Journal 562.1124 In Mahlangu v SATAWU, Passenger Rail Agency of SA (2014) 35 ILJ 1193 (GSJ), the plaintiff was
employed as a replacement worker. The employer’s domestic worker was participating in a strike calledby her union (SATAWU). One day, on the way to work, the replacement worker was approached byunknown people who offered her a full time job in Johannesburg. It transpired during the courtproceedings that among the people who promised her full time employment was the employee whomthe replacement worker had replaced because she was on strike. On the way to Johannesburg, thereplacement worker was victimised, stripped naked, and thrown out of a moving train in springs bymembers of SATAWU, and consequently suffered serious injuries. Furthermore, in Marikana, a minerwas reported to have been stripped naked, beaten, burnt and stabbed by strikers. The reason for hisdeath was alleged to be that he went to work while other employees were on strike.
1125 Tenza 2015 Law, Democracy and Development 222.1126 It is expected that the employer will suffer economic loss during strike action. In order to avert the
negative consequences, such as loss of profit, that come with industrial action, the employer usuallymakes alternative arrangements to keep its business going.
1127 Tenza 2015 Law, Democracy and Development 222.1128 S 76(1) (b) of the LRA 66 of 1995.1129 Tenza 2015 Law, Democracy and Development 231.
153
of replacement labour, will ensure that all parties to the dispute feel the harm, thereby
expediting the dispute resolution process.
It is however disheartening to imagine that even the Labour Relations Bill of 2017, did
not even touch on this aspect of replacing labour.
6.3.2 The CCMA
Matlou elucidates that dispensing social justice is part of CCMA commissioners in their
daily work.1130 South Africa therefore needs to borrow the United Kingdom system of
3 decision makers arbitrating the dispute unlike what is currently happening where a
single arbitrator handles the dispute alone. If arbitration awards are to be lightly
interfered with, at least 3 people are better than 1. It is difficult for 3 people to go astray
and that is why floodgate of cases are taken on review to the Labour Court.
The only panacea to limiting too many referral of cases to the CCMA, is to order a
payment of a certain fee. It however seems ordering costs to applicants who bring
frivolous claims may ward off indigent workers for whom the institution was meant to
assist. It is recommended to recruit trained human resource whose task is to scan
referrals as they come to reject frivolous claims which are likely to waste CCMA’s
time.1131
The issue of legal representation goes against the spirit in which the LRA was crafted.
Proceedings were meant to be simple, non-technical and non-legalistic. It is
recommended to limit lawyers as strictly as possible and then boost the number of
arbitrators by making them 3 instead of 1 to arbitrate the matter informally.
The LRA provides remedies that can be offered to employees whose dismissals are
found to be unfair and theses remedies are reinstatement, re-employment and
compensation.1132 If a commissioner fails to exercise his discretion correctly he might
award a wrong remedy. For example reinstating an employee when the employment
relationship has irretrievably broken down can be a disaster because that reinstated
1130 Ibid.1131 Mboh (LLM-thesis, NWU, 2012) 91.1132 S 193 and of Act 66 of 1995. See also Grogan 611.
154
employee will likely soon bring another dispute based on constructive dismissal. This
will make disputes to reoccur rather than reaching finality. It is against the spirit of the
LRA for disputes not to reach finality. It is recommended that commissioners use their
discretion carefully and with utmost precision before they make an award to avoid
unrealistic rulings.
6.3.3 Collective Bargaining and Negotiation
Positional bargaining or win or lose bargaining takes place when a stronger party uses
power to force the other party to see things the way the stronger party sees them.1133
Usually positional bargaining is associated with unrealistic demands and unwillingness
to engage in problem solving with the other party.1134 Trade unions sometimes instead
of fully representing its employees they tend to align themselves with employers’
motives. It is therefore recommended that workplace forums be given a role to play
under such circumstances. More so, integrative bargaining can also be of help as it
is whereby parties attempt to coexist rather than taking robust bargaining positions.1135
6.3.4 Review of CCMA Arbitration Awards
Although South Africa’s jurisprudence is of the view that the test of reasonableness as
formulated in Sidumo will ensure that arbitration awards are not lightly interfered with,
it seems not to be the case practically. Some scholars opined that Sidumo actually
widened the scope of review in terms s 145(2) by adding a reasonableness standard.
The researcher feels that the test of reasonableness is not an incorrect interpretation
of s 145 (2) as there should be a room of flexibility in interpreting legislation. However
it is recommended that a strict adherence to Sidumo must be always applied to avoid
a departure from Sidumo test as evidenced in the trilogy of cases in the previous
chapter. A shift from this test will create confusion as to when should parties apply for
1133 Katz et al 2015Cornell University ILR School 126.1134 Bosch et al 11.1135 Katz et al 2015Cornell University ILR School 127.
155
a review and in the end, if there is no proper standard, floodgate of cases will be filed
at Labour Court for a review.
Another issue discussed in chapter 5 which delays the review of CCMA awards, is
when the records go missing or ill prepared dragging parties to wait till the records are
found. A review cannot be conducted when there are no records. Under such
circumstances it is recommended to impose a severe penalty to those responsible
commissioners. The researcher further recommends that an appeal should take place
instead of a review if records are not yet available. An appeal is based on facts whilst
a review is based on records, so working with what is available at that time will speed
up the whole process than allowing parties to wait for something that is nowhere to be
found. The whole idea is to bring justice as quickly as possible and blaming the
commissioner for the missing records does not do any good.
6.4 Concluding Remarks
Peace is essential in the workplace and if not, the working environment becomes
chaotic. The shortfalls of current dispute resolution were analysed and some
recommendations for law reforms were put forward. From the issues dealt with in the
entire study, it is hoped that the title of this discussion has been appropriately
examined and the aims and objectives fully met. The economy of the nation to function
well, a labour dispute forum should be fully in place and operating effectively. If the
dispute structure is in shambles, it means the labourers will go on strike and the whole
nation will cease to make meaningful progress. No one in his or her right state of mind
would want to see the industry closing due to a poor dispute structure.
More so, victims of unfair dismissal would want their cases treated with emergency
because if a breadwinner gets fired without pay, it means no rent or food will be
available on the table. This might become nasty as families will be vulnerable and
destitute if their plights are not in the hands of a cheap, speedy and effective dispute
resolution. In conclusion, it should be noted that although efficiency, informality and
expeditiousness can serve to oil the wheels of dispute resolution, rushing through the
motions, may impede justice and fairness which may require prolongation, hence need
156
for a balance to be stricken. Moreover, Ray-Howett1136 argued that the need to resolve
disputes expeditiously and bring finality to these disputes should always be balanced
against the right to lawful, reasonable and procedurally fair administrative action as
set out in s 33(1) of the Constitution.
Case laws discussed in the study show that issues of affordability and delays which
emanate from reviews and appeals of arbitration awards are frustrating the goals of
LRA. Judgments in review cases suggests that in unresolved cases, formal, or at least
adversarial, procedures remain the default option.1137 Wallis1138 advances that it is a
little dispiriting to find cases where the employer has conducted a lengthy and detailed
disciplinary process of which there is a record and, when the matter comes to
arbitration, that process is repeated again.
The Amendment Act 6 of 2014 which amended certain sections of the LRA of 1995 is
a clear sign which shows that the system had serious flaws which rendered it
ineffective. The researcher opines that the legislature should also have touched on
the issue of legal representation at the CCMA. This is so because the prevalence of
lawyers has created a too technical and legalistic environment in arbitration
proceedings which defeats the speedy and informal process of resolving disputes. In
addition, there should be robust measures in the case where a commissioner fails to
record or keep records as alluded to in cases discussed, and be punished as this will
enhance compliance with the rules. The same should apply to commissioners who
unreasonably fail to deliver judgements within the specific time limits.
The researcher is however disheartened that the Labour Relations Bill of 2017, seem
not to have addressed issues advanced in the entire study, of speeding up the
resolution of labour disputes.
1136 Howett 2008 Industrial Law Journal 1627-1628.1137 Wallis 2014 Industrial Law Journal 855.1138 Ibid.
157
BIBLIOGRAPHY
International Labour Instruments and Recommendations
Abolition of Forced Labour Convention (No 105) of 1957.
Collective Bargaining Convention (No154) of 1981.
Equal Remuneration Convention (No 100) of 1951.
Equal Remuneration Convention and Discrimination (Employment and Occupation)
Convention (No 111) of 1958.
Examination of Grievances Recommendation (No 130) of 1967.
Forced Labour Convention (No 29) of 1930.
Freedom of Association and Protection of the Right to Organize Convention (No 87)
of 1948.
International Labour Organisation of 1919.
Labour Relations (Public Service) Convention (No 151) of 1978.
Minimum Age Convention (No 138) of 1973.
Termination of Employment Convention (No 158) of 1982.
The Right to Organise and Collective Bargaining Convention (No 98) of 1949.
Voluntary Conciliation and Arbitration Recommendation (No 92) of 1951.
Worst Forms of Child Labour Conventions (No 182) of 1999.
Other International Instruments and Regional Treaties
The International Covenant on Civil and Political Rights of 1966.
The International Covenant on Economic, Social and Cultural Rights of 1966.
158
The Universal Declaration of Human Rights of 1948.
The Charter of Fundamental Rights of the European Union of 2000.
Constitutions
The Constitution of South Africa 1996.
The Constitution of South Africa Act 200 of 1993.
Statutes
Arbitration Act 42 of 1965.
Basic Conditions of Employment Act 75 of 1997.
Industrial Conciliation Act 11 of 1924.
Industrial Disputes Prevention Act 20 of 1909.
Labour Relations Act 28 of 1956.
Labour Relations Act 66 of 1995.
Labour Relations Amendment Act 12 of 2002
Labour Relations Amendment Act 6 of 2014
Mines and Works Act 12 of 1911.
Native Labour Regulations Act 15 of 1911.
Natives Urban Areas Act 21 of 1923.
159
Journal Articles
Adigun AO “The Implications of Social Democracy on Industrial Relations in Nigeria”
2014 5 Journal of Emerging Trends in Economics and Management Sciences 26-31.
Albertyn S and Adair B “Dispute Resolution and the Public Service” 1999 20 Industrial
Law Journal 1430-1444.
Animashaun O, Odeku O and Nevondwe L “Impact and Issues of Alternative Dispute
Resolution in South Africa with Emphasis on Workplace Dispute” 2014 5
Mediterranean Journal of Social Sciences 678-682.
Antoine TJ “Keynote Address: The Moral Dimension of Employment Dispute
Resolution” 2012 86 St John’s Law Review 391-412.
Arputharaj MJ and Gayatri R “A Critical Analysis on Efficacy of Mechanism to Industrial
Dispute Resolution in India” 2014 2 International Journal of Current Research and
Academic Review 328-344.
Bendeman H “Alternative Dispute Resolution in the Workplace-The South African
Experience” 2007 7 African Journal on Conflict Resolution 137-161.
Bendeman H “An Analysis of the Problem of the Labour Dispute Resolution System in
South Africa” 2006 6 African Journal on Conflict Resolution 81-112.
Benjamin P “Beyond Dispute Resolution: The Evolving Role of the Commission for
Conciliation, Mediation and Arbitration” 2014 35 Industrial Law Journal 1-29.
Benjamin P “Conciliation, Arbitration and Enforcement: The CCMA’s Achievements
and Challenges” 2009 30 Industrial Law Journal 26-48.
Benjamin P “Friend or Foe: The Impact of Judicial Decisions on the Operation of the
CCMA” 2007 28 Industrial Law Journal 1-42.
Berik G, and Rodgers YVDM “Options for Enforcing Labour Standards: Lessons from
Bangladesh and Cambodia” 2010 22 Journal of International Development 56-85.
Block RN, Roberts K, Ozeki C and Roomkin MJ “Models of International Labor
Standards” 2001 40 Industrial Relations 258-292.
160
Bosch C “Bent out of Shape: Critically Assessing the Application of the Right to Fair
Labour Practices in Developing South African Labour Law” 2008 19 Stellenbosch Law
Review 374-389.
Botes A “The History of Labour Hire in Namibia: A Lesson for South Africa” 2013 16
Potchefstroom Electronic Law Journal 506-536.
Botha MM “In Search of Alternatives or Enhancements to Collective Bargaining in
South Africa: Are Workplace Forums a Viable Option?” 2015 18 Potchefstroom
Electronic Law Journal 1812-1845.
Botha MM “Responsible Unionism during Collective Bargaining and Industrial Action:
Are we Ready Yet?” 2015 48 De Jure 328-350.
Botha N and Mischke C “A New Labour Dispensation for South Africa” 1997 41 Journal
of African Law 134-140.
Brand J “Amicable Dispute Resolution in South Africa” 2011 2 Kluwer Law
International 591-599.
Brooks B “The Reform of Labour Laws: An International Comparison” 2006 29
University of New South Wales Law Journal 22-46.
Budd JW and Colvin AJS “Improved Metrics for Workplace Dispute Resolution
Procedures: Efficiency, Equity and Voice” 2008 47 Journal of Economy and Society
460-479.
Budeli M “Employment Equity and Affirmative Action in South Africa: A Review of the
Jurisprudence of the Courts since 1994” 2016 3 African Journal of Democracy and
Governance 75-106.
Budeli M “Worker’s Right to Freedom of Association and Trade Unionism in South
Africa: A Historical Perspective” 2009 15 Fundamina 57-74.
Buthelezi S “Enforcement of CCMA Default Awards” 2012 De Rebus 34-36.
Calitz K “Violent, Frequent and lengthy Strikes in South Africa: Is the Use of
Replacement Labour Part of the Problem?” 2016 28 South African Mercantile Law
Journal 436-460.
161
Chakma A “Alternative Dispute Resolution under Labor Law in Bangladesh” 2012
SSRN Electronic Journal 1-12.
Chicktay MA “Placing the Right to Strike within a Human Rights Framework” 2006 27
Obiter 344-350.
Clark J “Arbitration in Dismissal Disputes in South Africa and the UK: Adversarial and
Investigative Approaches” 1997 18 Industrial Law Journal 609-624.
Coetzee F and Beerman R “Can an Employer Still Raise the Retrenchment Flag in
Interest Negotiations-The Fry Metals Case under the Labour Relations Amendment
Bill 2012” 2012 45 De Jure 348-358.
Cohen T “Limiting Organisational Rights of Minority Unions: POPCRU v Ledwaba
2013 11 BLLR 1137 (LC)” 2014 17 Potchefstroom Electronic Law Journal 2209-2229.
Cohen T and Matee L “Public Servants’ Right to Strike in Lesotho, Botswana and
South Africa-A Comparative Study” 2014 17 Potchefstroom Electronic Law Journal
1631-1658.
Collier D “The Right to Legal Representation under the Labour Relations Act” 2003 24
Industrial Law Journal 753-770.
Conradie M “The Constitutional Right to Fair Labour Practices: A Consideration of the
Influence and Continued Importance of the Historical Regulation of (UN) Fair Labour
Practices Pre-1977” 2016 22 Fundamina 163-204.
Cruise JA “The Gender and Racial Transformation of Mining Engineering in South
Africa” 2011 111 The Journal of the South African Institute of Mining and Metallurgy
217-224.
Daemane MMM “Human Resources Management and Trade Unions Compatibility:
Soft-Hard Model Digestion for Human Capacity Building and Sustainable Productivity
at Workplace” 2014 5 Journal of Emerging Trends in Economics and Management
Sciences 121-130.
Desai A and Habib A “Labour Relations in Transition: The Rise of Corporatism in South
Africa’s Automobile Industry” 1997 35 The Journal of Modern African Studies 495-518.
162
Dollery B “Labour Apartheid in South Africa: A Rent Seeking Approach to
Discriminatory Legislation” 1990 29 Australian Economic Papers 113-127.
Du Toit D “Corporatism and Collective Bargaining in a Democratic South Africa” 1995
16 Industrial Law Journal 785-806.
Du Toit D “Industrial Democracy in South Africa's Transition” 1997 1 Law, Democracy
and Development 39-68.
Du Toit D “Protection against Unfair Discrimination: Cleaning up the Act?” 2014 35
Industrial Law Journal 2623-2636.
Dugard J “International Law and the South African Constitution” 1997 European
Journal of International Law 77-92.
Ebrahim S “The Interpretation to be Accorded to the Term Benefits in Section 186(2)
(a) of the LRA Continues: Apollo Tyres South Africa (Pty) Limited v CCMA (DA1/11)
[2013] ZALAC 3” 2014 17 Potchefstroom Electronic Law Journal 596-612.
Estreicher S “Collective Bargaining or ‘Collective Begging’? Reflections on
Antistrikebreaker Legislation” 1994 93 Michigan Law Review 577-608.
Ewing KD “The Function of Trade Unions” 2005 34 Industrial Law Journal 1-22.
Faris J “Deciphering the Language of Mediatory Intervention in South Africa” 2006 39
Comparative and International Law Journal of South Africa 427-449.
Farris J “The Procedural Flexibility of Arbitration as an Adjudicative Alternative Dispute
Resolution Process” 2008 41 De Jure 504-523.
Fergus E “Reviewing an Appeal: A Response to Judge Murphy and the SCA” 2014 35
Industrial Law Journal 47-78.
Fergus E “The Distinction between Appeals and Reviews-Defining the Limits of the
Labour Court's Powers of Review” 2010 31 Industrial Law Journal 1556-1574.
Ferreira G “Collective Bargaining and the Public Sector” 2008 43 Journal of Public
Administration 191-202.
Ferreira G “Developments in Labour Relations in South Africa: Ten Years of
Democracy 1994-2004” 2005 24 Politeia 197-214.
163
Ferreira G “The Commission for Conciliation, Mediation and Arbitration: Its
Effectiveness in Dispute Resolution in Labour Relations” 2004 23 Politeia 73-85.
Fourie E “What Constitutes a Benefit by Virtue of Section 186(2) of the Labour
Relations Act 66 of 1995? Apollo Tyres South Africa (Pty) Ltd v CCMA 2013 5 BLLR
434 (LAC)” 2015 18 Potchefstroom Electronic Law Journal 3300-3313.
Garbers C “Reviewing CCMA Awards in the Aftermath of Sidumo” 2008 17
Contemporary Labour Law 84-90.
Geldenhuys J “The Reinstatement and Compensation Conundrum in South Africa
Labour Law” 2016 19 Potchefstroom Electronic Law Journal 1-39.
Gericke SB “Revisiting the Liability of Trade Unions and/or their Members during
Strikes: Lessons to be Learnt from Case Law” 2012 75 THRHR 566-585.
Gericke SB “The Interplay between International Law and Labour Law in South Africa:
Piercing the Diplomatic Immunity Veil” 2014 17 Potchefstroom Electronic Law Journal
2601-2634.
Haley JN “Mediation and Access to Justice in Africa: Perspectives from Ghana” 2015
21 Harvard Negotiation Law Review 59-106.
Harvey S “Labour Brokers and Workers’ Rights: Can They Co-Exist in South Africa?”
2011 128 South African Law Journal 100-122.
Hepple B “Negotiation Social Change in the Shadow of the Law” 2012 South African
Law Journal 248-273.
Howett GR “Is it Reasonable for CCMA Commissioners to Act Irrationally” 2008 29
Industrial Law Journal 1619-1634.
Jordaan C and Ukpere WI “South African Industrial Conciliation Act of 1924 and
Current Affirmative Action: An Analysis of Labour Economic History” 2011 5 African
Journal of Business Management 1093-1101.
Kleu CB and Govindjee A “The Role of Reasonableness in the Review of CCMA
Arbitration Awards in South Africa-An English Comparison” 2014 35 Industrial Law
Journal 1777-1801.
164
Kruger J and Tshoose CI “The Impact of the Labour Relations Act on Minority Trade
Unions: A South African Perspective” 2013 16 Potchefstroom Electronic Law Journal
285-487.
Landman AA “A Study in Deference: Labour Court Deference to CCMA Arbitration
Awards” 2008 29 Industrial Law Journal 1613-1618.
Le Roux P and Young KL “The Role of Reasonableness in Dismissal: The
Constitutional Court Looks at Who Has the Final Say” 2007 17 Contemporary Labour
Law 21-30.
Le Roux R “Employment: A Dodo, or Simply Living Dangerously” 2014 35 Industrial
Law Journal 30-46.
Madhuku L “The Alternative Labour Dispute Resolution System in Zimbabwe: Some
Comparative Perspectives” 2012 14 University of Botswana Law Journal 3-44.
Mahapa M and Watadza C “The Dark Side of Arbitration and Conciliation in
Zimbabwe” 2015 3 Journal of Human Resources Management and Labor Studies 65-
76.
Manamela E and Budeli M “Employees' Right to Strike and Violence in South Africa”
2013 46 Comparative and International Law Journal of South Africa 308-336.
Mantouvalou V “Are Labour Rights Human Rights?” 2012 3 European Labour Law
Journal 1-18.
Matlou D “Understanding Workplace Social Justice within the Constitutional
Framework” 2016 28 South African Mercantile Law Journal 544-562.
Mischke C “Getting Foot at the Door: Organizational Rights and Collective Bargaining
in terms of LRA” 2004 13 Contemporary Labour Law 51-60.
Molusi AP “The Constitutional Duty to Engage in Collective Bargaining” 2010 31 Obiter
156-166.
Mubangizi JC “Some Reflections on Two Decades of Human Rights Protection in
South Africa: Lessons and Challenges” 2014 22 African Journal of International and
Comparative Law 512-531.
165
Murray C “The Human Rights Commission et al: What is the Role of South Africa’s
Chapter 9 Institutions?” 2006 9 Potchefstroom Electronic Law Journal 122-197.
Murwirapachena G “Exploring the Incidents of Strikes in Post-Apartheid South Africa”
2014 13 International Business & Economics Research Journal 553-560.
Myburgh A “The Failure to Obey Interdicts Prohibiting Strikes and Violence: The
Implications for Labour Law and the Rule of Law” 2013 23 Contemporary Labour Law
1-10.
Myburgh A “The LAC’s Latest Trilogy of Review Judgments: Is the Sidumo Test in
Decline?” 2013 34 Industrial Law Journal 19-27.
Myburgh A “The Test for Review of CCMA Arbitration Awards: An Update” 2013 23
Contemporary Labour Law 31-42.
Nattrass N and Seekings J “Citizenship and Welfare in South Africa: Deracialisation
and Inequality in a Labour-Surplus Economy” 1997 31 Canadian Journal of African
Studies 452-481.
Newaj K and Van Eck S “Automatically Unfair and Operational Requirement
Dismissals: Making Sense of the 2014 Amendments” 2016 19 Potchefstroom
Electronic Law Journal 1-30.
Nkhumise RW “Dismissal of an Employee at the Instance of a Client: Revisiting Nape
v INTCS Corporate Solutions (Pty) Ltd in the Context of the Labour Relations
Amendment Act 6 of 2014” 2016 20 Law, Democracy and Development 106-130.
Nupen D “Constitutionalism and Political Stability in South Africa” 2004 4 African
Journal on Conflict Resolution 119-142.
Nwauche ES “Administrative Bias in South Africa” 2005 8 Potchefstroom Electronic
Law Journal 1-42.
O’Regan C “1979-1997: Reflecting on 18 Years of Labour Law in South Africa” 1997
18 Industrial Law Journal 889-901.
O’Regan C “The Development of Private Labour Arbitration in South Africa-A Review
of Arbitration Awards” 1989 10 Industrial Law Journal 557-576.
166
Odeku KO “An Overview of the Right to Strike Phenomenon in South Africa” 2014 5
Mediterranean Journal of Social Sciences 695-702.
Oswalt MM “The Right to Improvise in Low-Wage Work” 2016-2017 38 Cardozo Law
Review 959-1040.
Pretorius DM “Making You Whistle: The Labour Appeal Court's Approach to Reviews
of CCMA Arbitration Awards” 2000 21 Industrial Law Journal 1506-1525.
Prevost D “South Africa as an Illustration of the Development of International Human
Rights Law” 1999 24 South African Yearbook of International Law 211-231.
Quansah EK “A New Labour Dispensation for South Africa” 1997 41 Journal of African
Law 134-146.
Queke D “Mandatory Mediation: An Oxymoron? Examining the Feasibility of a Court-
Mandated Mediation Programme” 2010 11 Cardozo Journal of Conflict Resolution
479-509.
Reuben RC “Democracy and Dispute Resolution: Systems Design and the New
Workplace” 2005 10 Harvard Negotiation Law Review 11-68.
Rubin N “International Labour Law and the Law of the New South Africa” 1998 115
South African Law Journal 685-709.
Rycroft A “Labour” 1996 7 South African Human Rights Yearbook 138-153.
Rycroft A “Why is Mediation Not Taking Root in South Africa” 2009 Africa Centre for
Dispute Settlement 1-13.
Sappia J “Labour Justice and Alternate Dispute Resolution of Collective and Individual
Labour Conflicts” 2002 University of Toronto Law Journal 1-8.
Selala KJ “Constitutionalising the Right Legal Representation at CCMA and Arbitration
Proceedings: Law Society of the Northern Provinces v Minister of Labour 2013 1 SA
468 (GNP)” 2013 16 Potchefstroom Electronic Law Journal 397-487.
Selala KJ “The Right to Strike and the Future of Collective Bargaining in South Africa:
An Exploratory Analysis” 2014 3 International Journal of Social Sciences 115-126.
167
Sharpe CW “Judicial Review of Arbitration Awards under the New South Africa Labour
Relations Act of 1995” 2001 33 Case Western Reserve Journal of International Law
277-305.
Sharpe CW “Reviewing CCMA Arbitration Awards: Towards Clarity in the Labour
Courts” 2000 21 Industrial Law Journal 2160-2173.
Shilton E “Labour Arbitration and Public Rights Claims: Forcing Square Pegs into
Round Holes” 2015-2016 41 Queen’s Law Journal 275-316.
Smit N “How Do You Determine a Fair Sanction? Dismissal as Appropriate Sanction
in Cases of Dismissal for (Mis) Conduct” 2011 44 De Jure 49-73.
Smit P “Regional Labour Standards in the SADC: Is it Possible, Given the EU
Experience?” 2015 2 Journal of Law, Society and Development 165-188.
Smit P and Van Eck BPS “International Perspectives on South Africa’s Dismissal Law”
2010 43 Comparative and International Law Journal of South Africa 46-67.
Southall R “The African Middle Class in South Africa 1910-1994” 2014 Economic
Research Southern Africa 1-23.
Springveldt Y “Dispute Resolution under the Labour Relations Act: Practical
Implications of the Amendments to Section 145 on the Furnishing of Security” 2017
38 Industrial Law Journal 63-80.
Steadman F “Workplace Forums in South Africa: A Critical Analysis” 2004 25 Industrial
Law Journal 1170-1202.
Steenkamp A “The Labour Courts in 2014: The Position after the Promulgation of the
Superior Courts Act and in Light of the Amendments to Labour Legislation” 2014 35
Industrial Law Journal 2678-2688.
Steenkamp A and Bosch C “Labour Dispute Resolution under the 1995 LRA:
Problems, Pitfalls and Potential” 2012 Acta Juridica 120-147.
Sundar KRS “Trade Unions and Civil Society: Issues and Strategies” 2007 42 Indian
Journal of Industrial Relations 713-734.
168
Tenza M “An Investigation into the Causes of Violent Strikes in South Africa: Some
Lessons from Foreign Law and Possible Solutions” 2015 19 Law, Democracy and
Development 211-231.
Theron J “Decent Work and the Crisis of Labour Law in South Africa” 2014 35
Industrial Law Journal 1829-1850.
Theron J and Godfrey S “The CCMA and Small Business-The Results of a Pilot Study”
2000 21 Industrial Law Journal 53-76.
Theron J, Godfrey S and Fergus E “Organisational Collective Bargaining Rights
through the Lens of Marikana” 2015 36 ILJ 849-869.
Tshoose C “Determining the Threshold for Organisational Rights: The Legal Quagmire
Facing Minority Unions Resolved-South African Post Office v Commissioner
Nowosenetz No (2013) 2 BLLR 216 (LC)” 2013 34 Obiter 600-610.
Twala C “The Marikana Massacre: A Historical Overview of the Labour Unrest in the
Mining Sector in South Africa” 2012 1 Southern African Peace and Security Studies
61-67.
Twyman CM “Finding Justice in South African Labour Law: The Use of Arbitration to
Evaluate Affirmative Action” 2001 33 Case Western Reserve Journal of International
Law 307-342.
Van der Walt R “Have Workplace Forums Contributed to Worker Participation? Some
Management Perceptions” 2008 Institutional Research Repository of the University of
Pretoria 45-51.
Van Eck BPS “Regulated Flexibility and the Labour Relations Amendment Bill of 2012”
2013 46 De Jure 600-612.
Van Niekerk A “Is the South African Law of Unfair Dismissal Unjust: A Reply to Martin
Brassey” 2013 34 Indutrial Law Journal 28-37.
Van Niekerk A “Speedy Social Justice: Streamlining the Statutory Dispute Resolution
Process” 2015 36 Industrial Law Journal 837-848.
Vettori S “Enforcement of Labour Arbitration Awards in South Africa” 2013 25 South
African Mercantile Law Journal 245-254.
169
Vettori S “Mandatory Mediation: An Obstacle to Access to Justice?” 2015 15 African
Human Rights Law Journal 355-377.
Vettori S “The Role of Human Dignity in the Assessment of Fair Compensation for
Unfair Dismissals.” 2012 15 Potchefstroom Electronic Law Journal 102-231.
Wallis M “The Rule of Law and Labour Relations” 2014 35 Industrial Law Journal 849-
862.
Wissler R “The Effects of Mandatory Mediation: Empirical Research on the Experience
of Small Claims and Common Courts” 1997 33 Willamette Law Review 565-604.
Wood G and Mahabir P “South Africa’s Workplace Forum System: A Stillborn
Experiment in the Democratisation of Work?” 2001 32 Industrial Relations Journal
230-243.
Books
Bendix S Industrial Relations in South Africa 4ed (2006) Juta and Co: Cape Town.
Bendix S Industrial Relations in South Africa 5ed (2010) Juta and Co: Cape Town.
Bosch D, Molahlehi E and Everett W The Conciliation and Arbitration Handbook: A
Comprehensive Guide to Labour Dispute Procedures (2004) LexisNexis: Durban.
Brand J, Lotter C, Steadman F and Ngcukaitobi T Labour Dispute Resolution 2ed
(2008) Juta and Co: Cape Town.
Brassey, Cameron, Cheadle and Olivier The New Labour Law: Strikes, Dismissals and
the Unfair Labour Practice in South African Law (1987) Juta and Co: Cape Town.
Budeli M, Manamela E, Manamela T, Tshoose C, McGregor M and Dekker A Labour
Law Rules (2012) Siber Ink: Cape Town.
Collins H, Ewing KD and McColgan A Labour Law (2012) Cambridge University Press:
New York.
Du Plessis JV and Fouche M A Practical Guide to Labour Law 6ed (2006) LexisNexis:
Durban.
170
Du Plessis JV and Fouche M A Practical Guide to Labour Law 7ed (2012) LexisNexis:
Durban.
Du Toit D, Woolfrey D, Bosch D, Godfrey S, Christie S, Cooper C, Giles G Labour
Relations Law: A Comprehensive Guide 6ed (2015) LexisNexis: Cape Town.
Du Toit D, Woolfrey D, Murphy J, Godfrey S, Bosch D and Christie S Labour Relations
Law: A Comprehensive Guide 3ed (2000) Butterworths: Durban.
Finnemore M and Van Rensburg R Contemporary Labour Relations 2ed (2002)
LexisNexis: Durban.
Godfrey S, Maree J, Du Toit D, and Theron J Collective Bargaining in South Africa:
Past, Present and Future? (2010) Juta and Co: Cape Town.
Grogan J Collective Labour Law (2007) Juta and Co: Cape Town.
Grogan J Dismissal 2ed (2014) Juta and Co: Cape Town.
Grogan J Dismissal, Discrimination and Unfair Labour Practices 2ed (2007) Juta and
Co: Cape Town.
Grogan J Employment Rights (2010) Juta and Co: Cape Town.
Grogan J Workplace Law 10ed (2009) Juta and Co: Cape Town.
Hoexter C Administrative Law in South Africa 2ed (2012) Juta and Co: Johannesburg.
Holtzhausen M, Conradie M, Bendeman H, Dworzanowski B, Venter R and Levy A
Labour Relations in South Africa 4ed (2011) Oxford University Press: Cape Town.
Landis H and Grossett L Employment and the law: A Practical Guide for the Workplace
3ed (2014) Juta and Co: Cape Town.
Le Roux R and Rycroft A (eds) Reinventing Labour Law: Reflecting on the First 15
Years of the Labour Relations Act and Future Challenges (2012) Juta and Co: Cape
Town.
Le Roux R, Orleyn T and Rycroft A Sexual Harassment in the Workplace: Law, Policies
and Processes (2005) LexisNexis: Durban.
Levy A and Venter R The Digest Resolution 2012 Tokiso Dispute Resolution (2012)
Juta and Co: Cape Town.
171
Levy A and Venter R The Digest Resolution 2014 Tokiso Dispute Resolution (2014)
Juta and Co: Cape Town.
Ringrose HG The Law and Practice of Employment (1983) Juta and Co: Cape Town.
Rossouw J and Conradie B A Practical Guide to Unfair Dismissal Law in South Africa
(1999) LexisNexis: Durban.
Slabbert JA and Swanepoel BJ Introduction to Employment Relations Management
2ed (1998) Butterworths: Durban.
Van Jaarsveld SR and Van Eck BPS Principles of Labour Law (1998) Butterworths:
Durban.
Van Zyl B, Schlesinger E and Brand F CCMA Rules 2ed (2005) Van Zyl, Rudd and
Associates (Pty) Ltd: Port Elizabeth.
Chapters in Books
Benjamin P “Labour Law beyond Employment” in Le Roux R and Rycroft A (eds)
Reinventing Labour Law: Reflecting on the First 15 Years of the Labour Relations Act
and Future Challenges (2012) Juta and Co: Cape Town.
Du Toit D and Ronnie R “The Necessary Evolution of Strike Law” in Le Roux R and
Rycroft A (eds) Reinventing Labour Law: Reflecting on the First 15 Years of the Labour
Relations Act and Future Challenges (2012) Juta and Co: Cape Town.
Fergus E and Rycroft A “Refining Review” in Roux R and Rycroft A (eds) Reinventing
Labour Law: Reflecting on the First 15 Years of the Labour Relations Act and Future
Challenges (2012) Juta and Co: Cape Town.
Godfrey S and Bamu P “The State of Centralised Bargaining and Possible Future
Trends” in Le Roux R and Rycroft A (eds) Reinventing Labour Law: Reflecting on the
First 15 Years of the Labour Relations Act and Future Challenges (2012) Juta and Co:
Cape Town.
172
Hepple B “Is South African Labour Law Fit for the Global Economy” in Le Roux R and
Rycroft A (eds) Reinventing Labour Law: Reflecting on the First 15 Years of the Labour
Relations Act and Future Challenges (2012) Juta and Co: Cape Town.
Papers, Reports and Conferences
Benjamin P “Accessing South Africa’s Commission for Conciliation, Mediation and
Arbitration (CCMA)” 2013 International Labour Office 1-49.
Benjamin P “Labour Market Regulation: International and South African Perspectives”
2005 HSRC Employment and Economic Policy Research Programme 1-55.
Benjamin P and Cooper C “South African Labour Law: A Twenty-Year Assessment”
Swiss Programme for Research on Global Issues for Development 2016 1-67.
Benjamin P and Gruen C “The Regulatory Efficiency of the CCMA: A Statistical
Analysis of the CCMA’s CMS Database” DPRU Working Paper 2006 1-77.
Bhorat H, Jacobs E and Van der Westhuizen C “Do Industrial Disputes Reduce
Employment? Evidence from South Africa” 2013 Africa Growth Initiative 1-21.
Bhorat H, Naidoo K and Yu D “Trade Unions in an Emerging Economy: The Case of
South Africa.” 2014 Development Policy Research Unit 1-23.
Bhorat H, Pauw K and Mncube L “Understanding the Efficiency and Effectiveness of
the Dispute Resolution System in South Africa: An Analysis of CCMA Data 2009
Development Policy Research Unit 1-85.
Boulle L “A History of Alternative Dispute Resolution” 2005 7 ADR Bulletin 130-132.
Brand J “Strike Avoidance-How to Develop a Strike Avoidance Strategy” A Paper
Presented at Annual Labour Law Conference on 23rd of August 2010 1-14.
Cowling M “Conciliation as a Means for Dispute Settlement in Labour Disputes-the
South Africa Experience” 2008 10 ADR Bulletin 81-83.
173
Cyprus N “Collective Dispute Resolution through Conciliation, Mediation and
Arbitration: European and International Labour Organisation Perspectives” 2007
International Labour Office 1-25.
Elsley T and Mthethwa G “Wage Determination in South Africa since 1994” 2014
Labour Research Service 1-30.
Godfrey S, Theron J and Visser M “The State of Collective Bargaining in South Africa
An Empirical and Conceptual Study of Collective Bargaining” 2007 DPRU Working
Paper 1-138.
Grawitzky R “Collective Bargaining in Times of Crisis: A Case Study of South Africa”
2011 International Labour Office 1-72.
Harvey R “Marikana as a Tipping Point? The Political Economy of Labour Tensions in
South Africa’s Mining Industry and How Best to Resolve them” 2013 South African
Institute of International Affairs 1-34.
Katz HC, Kochan TA and Colvin AJS “The Negotiations Process and Structures” 2015
Cornell University ILR School 121-164.
Khabo FM “Collective Bargaining and Labour Dispute Resolution- Is SADC Meeting
the Challenge?” 2008 International Labour Office 1-30.
Ntuli NN “Policy and Government’s Role in Constructive ADR Developments in Africa”
Presented at a Conference on ADR and Arbitration in Africa, Cape Town, November
28-29 2013 1-11.
Okharedia AA “The Emergence of Alternative Dispute Resolution in South Africa: A
Lesson for Other African Countries” A Paper Presented at the 6th African Regional
Congress of Industrial Relations, Lagos Nigeria, January 24-28 2011 1-24.
Read R “Recognition, Representation and Freedom of Association under the Fair
Work Act” 2009 Centre for Employment and Labour Relations Student Working Paper
1-42.
Report on the Alternative Dispute Resolution: Mediation and Conciliation November
16 2010.
174
Report submitted to the Marikana Commission of Inquiry “The Labour Relations
System and the Marikana Massacre 2014 Institute of Development and Labour Law
1-23.
Steadman F “Handbook on Alternative Labour Dispute Resolution” 2008 ILO
International Training Centre 1-63.
Theron J and Godfrey S “The CCMA and Small Business: The Impact of the Labour
Dispute Resolution System” 2001 Institute of Development and Labour Law 1-36.
Thompson C “Dispute Prevention and Resolution in Public Services Labour Relations:
Good Policy and Practice” 2010 International Labour Office 1-91.
Van der Berg S and Bhorat H “The Present as a Legacy of the Past: The Labour
Market, Inequality and Poverty in South Africa” 1999 DPRU Working Paper 1-22.
Vargha C “Reflections on ILO Experience: How Can the Effectiveness of Dispute
Resolution Systems Be Assessed?” 2014 International Labour Office 1-10.
Cases
A
AA Bull (Pty) Ltd v Kolisi (1998) 19 ILJ 795 (LC).
Abdull v Cloete No (1998) 19 ILJ 799 (LC).
Afrox Ltd v Laka (1999) 20 ILJ 1732 (LC).
Amalgamated and Textile Workers Union v Veldspun Ltd 1994 (1) SA 162 (A).
Astral Operations Ltd v Parry (2008) 29ILJ 2668 (LAC).
B
B and D Mines (Pty) Ltd v Sebothe No (1998) 6 BLLR 573 (LC).
Bato Star Fishing (Pty) Ltd v The Minister of Environmental Affairs and Tourism (2004)
4 SA 490 CC.
Bester v Easigas (Pty) Ltd 1993 (1) SA 30 (C).
175
Billiton Aluminium South Africa Ltd t/a Hillside Aluminium v Khanyile [2010] 5 BLLR
465 (CC).
Blue Ribbon Bakeries v Naicker (2000) 12 BLLR 1411 (LC).
BTR Industries South Africa (Pty) Ltd v Mawu (1992) 13 ILJ 803 (A).
Buckas v eThekwini Municipality (2003) 9 BLLR (LC).
Buthelezi v Labour for Africa (Pty) Ltd (1991) 12 ILJ 588 (IC).
C
Caci Beauty Salon and Spa v Van Heerden [2001] 7 BLLR 737 (LC).
Carephone (Pty) Ltd v Marcus NO [1998] 11 BLLR 1093 (LAC.
Carolissen v City of Cape Town (2014) 35 ILJ (LC).
CCMA v Law Society, Northern Provinces (005/13) [2013] ZASCA 118.
Chevron Engineering (Pty) Ltd v Nkambule 2004 3 BLLR 214 (SCA).
Chillibush Communications (Pty) Ltd v Gericke (2010) 31 ILJ 1350 (LC).
City of Cape Town v SAMWU obo Jacobs (2009) 9 BLLR 882 (LAC).
Coetzee v Lebea No [1998] ZALAC 26.
Commissioner for Conciliation, Mediation and Arbitration v Law Society of the Northern
Provinces (005/13) 2013 ZASCA 118.
Commuter Handling Services (Pty) Ltd v Mokoena (2002) 23 ILJ 1400 (LC).
Country Fair Foods (Pty) Ltd v CCMA (1999) 20 ILJ 2609 (LC).
Country Fair Foods (Pty) Ltd v Theron NO (2001) 2 BLLR 134 (LC).
County Fair Foods (Pty) Ltd v CCMA (1999) 20 ILJ 1701 (LAC).
CUSA V Tao Ying Metal Industries and Case CCT 40/07 [2008] ZACC15.
D
De Beers Consolidated Mines v CCMA 2000 5 BLLR 578 (LC).
Dimbaza Foundaries Ltd v CCMA (1999) 8 BLLR 779 (LC).
176
Dladla v Administrator Natal (1995) 3 SA 769 (A).
Du Plessis v Cape Peninsula University of Technology Case No C817/2014.
E
Ellis v Morgan 1909 TS 576.
Enderby Town Council Football Club v The Football Association Ltd 1971 (1) ALL ER
215.
Equity Aviation Services v CCMA (2008) BLLR 1129 (CC).
Ethekwini Municipality v Hadebe (DA17/14) [2016] ZALAC 14.
F
FAWU v Rainbow Chicken Farms (2000) 21 ILJ 615 (LC).
Fipaza v Eskon Holdings Ltd (2010) 31 ILJ 2903 (LC).
Franklin v Minister of Town and Country Planning 1948 AC 84.
Frasers International Removals v CCMA (1999) 7 BLLR 689 (LC).
G
Gobile v BP Southern Africa (Pty) Ltd (1999) 20 ILJ 2027 (LAC).
Goldfields Investment Ltd and another v City Council of Johannesburg 1938 TPD 551,
560.
Golding v HCI Managerial Services (Pty) Ltd 2015 36 ILJ 1098 (LC).
H
Hamata v Chairperson Peninsula Technikon Internal Disciplinary Committee (2002)
23 ILJ 1531 (SCA).
Harksen v Lane 1998 1 SA 300 (CC) 53.
I
In re Certification of the Constitution of the Republic of South Africa 1996 (4) SA 744
(CC); 1996 (10) BCLR 1253 (CC).
177
Intervale (Pty) Ltd v NUMSA 2014 ZALAC 10.
J
Jafta v CCMA (2006) 27 ILJ 2368 (LC).
Jiba v Minister: Department of Justice and Constitutional Development (2010) 31 ILJ
112 (LC).
K
Keerom Casa Hotel v Heinricks [1999] 1 BLLR 27 (LC).
Klipriver Licensing Board v Ebrahim 1911 AD 458.
Kroukam v South Africa Airlink (2005) ILJ 2153 (LAC).
L
Law Society of the Northern Provinces v Minister of labour (2013) (1) BLLR 105 (GNP)
45.
Le Roux v CCMA (2000) 21 ILJ 1366 (LC).
Legal Aid Board v John NO (1998) 19 ILJ 851.
Lekota v First National Bank of SA Ltd (1998) 10 BLLR 1021 (LC).
M
Maepe v CCMA (2008) 8 BLLR 723 (LAC).
Mahlangu v CIMDeltak (1986) 7ILJ 346 (LC).
Mahoko v Mangaung Metropolitan Municipality (JA 878/13) [2013] ZALCJHB 63.
Makuse v Commission for Conciliation, Mediation and Arbitration [2015] ZALCJHB
265.
Malelane Toyota v CCMA (1999) 6 BLLR 565 (LC).
Mashego v Cellier JR 2721/13 [2015] ZALCJHB 415.
Mashiya v Sirkhot NO (2012) 33 ILJ 420 (LC).
Mbs Transport v SATAWU (J1807/2015) [2015] ZALCJHB 461.
178
MEC: Department of Finance, Economic Affairs and Tourism, Northern Province v
Mahumani (2004) 25 ILJ 2311 (SC).
Minister of Safety and Security v De Vos (2008) 29 ILJ 688 (CC).
Moloi v Euijen NO [1999] ZALAC 16.
Monare v South African Tourism and CCMA (JA45/14) [2015] ZALAC 47.
Moroenyane v Station Commander of the South Africa Police Services [2016]
ZALCJHB 330.
Mutual and federal Insurance Co Ltd v CCMA (1997) 12 BLLR 1810 (LC).
Myers v National Commissioner of the SAP Service 2013 JOL 30564 (SCA).
Mzeku v Volkswagen SA (Pty) Ltd (2001) 22 ILJ 1575 (LAC).
N
Naraindath v CCMA [2000] 6 BLLR 716 (LC).
National Education Health and Allied Workers Union v UCT 2003 (3) SA 1 (CC) 2003
(2) BCLR 154 (CC).
National Entitlement Workers Union v John NO 1997 12 BLLR 1623 (LC).
National Union of Mineworkers v Commission for Conciliation Mediation and
Arbitration (JA90/2013) [2014] ZALAC 51.
Netherburn, Engineering CC t/a Netherburn Ceramics v Mudau NO (JA 1/05) [2008]
ZALAC 13.
Ngcongo v University of South Africa (J 2950/2011) [2012] ZALCJHB 146.
Norman Tsie Taxis v Pooe NO (2005)26 ILJ 109 (LC) 114.
NUMSA obo Members v Elements Six Productions (Pty) Ltd [2017] ZALCJHB 35.
NUMSA v Edelweiss Glass and Aluminium (Pty) Ltd [2009] 11 BLLR 1083 (LC).
O
Ocgawu v Volkswagen of South Africa (Pty) Ltd 2002 23 ILJ 220 (CCMA).
R
179
Rainbow Farms (Pty) Ltd v Ngidi (2001) 6 BLLR 664 (LC).
Real Estate Services (Pty) Ltd v Smith (1999) 20 ILJ 196 (LC).
S
S v Mohamed 1977 (2) SA 531 (A)
SA Clothing Services Ltd v Steel Mining and Commercial Workers Union (2000) 9
BLLR 1106 (LC).
Sambo v Steytler Boerdery (C592/13 [2014] ZALCCT 33.
Sasol Mining (Pty) Ltd v Commissioner Ngqeleni (2011) 4 BLLR 404 (LC).
SASTAWU v Karras t/a Floraline (1999) 10 BLLR 1097 (LC).
SBV Services (Pty) Ltd v CCMA 2013 34 ILJ 996 (LC).
Shoprite Checkers (Pty) Ltd v Ramdaw NO (2000) 7 BLLR 835 (LC).
Shoprite Checkers (Pty) Ltd v Ramdaw NO (2001) 22 ILJ 1603 (LAC).
Sibeko v Xstrata Coal South Africa 2016 37 ILJ 1230 (LC).
Sidumo and others v Rustenburg Platinum Mines Ltd [2007]12 BLLR 1097 (CC).
South Africa Municipal Workers Union on behalf of Members v Kopanong Local
Municipality (2014) 35 ILJ 1378 (LC).
Stocks Civil Engineering (Pty) Ltd v Rip No (2002) 3 BLLR 189 (LAC).
T
Themba v Mintroad sawmills 2015 2 BLLR 174 (LC).
Tikly v Johannes NO 1963 (2) SA 588 (T).
Topics (Pty) Ltd v CCMA (1998) 10 BLLR 1071 (LC).
V
Van Wyk v Unitas Hospital 2008 (2) SA 472 (CC).
Z
Zaayman v Provincial Director: CCMA Gauteng (1999) 1 BLLR 92 (LC).
180
Zondo v Uthukela District Municipality (2015) 36 ILJ 502 (LC).
Thesis
Bezuidenhout SA The Powers of the Labour Court to Review Arbitration Awards of the
Commission for Conciliation, Mediation and Arbitration: A Comparative Study (LLM-
thesis, UNISA, 2004).
Boyens MJ Sidumo Revisited ((LLM-thesis, NMMU, 2015).
Buckham T The Effects of Centralised or Decentralised Bargaining Process in the
Management of Industrial Actions in the South African Mining Industry (MBA-thesis,
UP, 2014).
Fergus E From Sidumo to Dunsmuir-The Test for Review of CCMA Arbitration Awards
(PhD-thesis, UCT, 2013).
Gounden S An Analysis of the Presentation and Admissibility of Evidence at CCMA
Arbitrations (LLM-thesis, UKZN, 2013).
Lesha JJ The Effectiveness of South African Labour Legislation in Dealing with Mass
Industrial Action Before and After the Promulgation of the Constitution Act 108 of 1996
(LLM-thesis, UKZN, 2016).
Koorapetse MS A Comparison of the Botswana and South African Labour Dispute
Resolution Systems (MA-thesis, NMMU, 2011).
Kruger WP Legal Representation at Disciplinary Hearings and Before the CCMA
(LLM-thesis, UP, 2012).
Kwakwala BOK A Critical Evaluation of Dispute Resolution Function of the CCMA
(MCom-thesis, SU, 2010)
Lubisi N Labour Dispute Resolution by Bargaining Councils and the Commission for
Conciliation, Mediation and Arbitration: A Legal Analysis (LLM-thesis, UFH, 2005).
Mboh LN The Effectiveness of Dispute Resolution Mechanisms Within the South
African Labour Law System: A Critical Analysis (LLM-thesis, NWU, 2012).
181
Mphahlele K The Labour Relations Dispute Resolutions System: Is it Effective? (LLM-
thesis, UP, 2016).
Mwenda WS Paradigms of Alternative Dispute Resolution and Justice Delivery in
Zambia (LLD-thesis, UNISA, 2006).
Nchabeleng NR The Constitutionality of Rule 25 of the CCMA Rules (LLM-thesis,
NWU, 2015).
Smith BS A Critique of Dispute Resolution in the Public Service (LLM-thesis, NMMU,
2008).
Van Graan DJ The Grounds for Review of the CCMA Awards (LLM-thesis, UP, 2014).
Online Sources
Alternative Dispute Resolution Practitioners Guide available at
https://www.usaid.gov/sites/default/files/documents/1868/200sbe.pdf (accessed on
21/02/2016).
Budd JW, Gomez R and Meltz NM “Why Balance is the Best Pluralistic Industrial
Relations Paradigm on Balancing Competing Interests?” available at
www.legacy.irc.csom.umn.edu/faculty/jbudd/research/buddgomezmeltz (accessed
on 10-05-2016).
Christie S and Madhuku L “In a Review of the Industrial Dispute Resolution
Procedures of Southern Africa” available at
https://library.fes.de/fulltext/bueros/Botswana/00539005.htm (accessed on 01-07-
2016).
http://www.ilo.org/ifpdia/information-resources/publications/WCMS211468/index.htm
(accessed on 15-09-2016).
Leon P “The Mining Industry After Marikana” 2013 available at
www.politicsweb.co.za/news-and-analysis/the-mining-industry-after-marikana
(accessed on 17-03-2016).
www.bizcommunity.com/Article/196/546/91333html (accessed on 26-03-2016).
182
www.collinsdictionary.com/dictionary/english/labour-relations (accessed on 04-07-
2016).
www.nortonrosefullbright.com/files/south-africa-25761.pdf (accessed on 21-02-
2016).
www.thefreedictionary.com/workplace (accessed on 04-07-2016).