Can one review a decision of a commissioner who fails to provide cogent reasons for his decision?
In the recent decision of The Workforce Group v CCMA & Others (unreported case number JR30688/11 decided on 27 February 2015), the Labour Court had to decide whether an arbitration award, in which the commissioner provided very few reasons for the conclusion reached, was reviewable in terms of s145 of the Labour Relations Act, No 66 of 1995 (LRA).
The case dealt with a contract concluded between The Workforce Group (Workforce), which provides staffing solutions to companies, and Rand Water. A large component of Workforce's business involves the provision of temporary employment services. A contract was concluded in which Workforce would provide employment services to Rand Water. Further contracts were then concluded between Workforce and the employees and one of the terms of these contracts was that should the contract between Workforce and Rand Water be terminated, the contracts between Workforce and the employees would terminate automatically. This scenario is exactly what unfolded.
Ralefatane, AJ was tasked with with reviewing the CCMA commissioner's award, which was only three pages long and lacked substantial reasoning for the conclusions given. However, prior to dealing with the award itself, the court was required to decide a preliminary point as various employees had not been cited as respondents. The court said it was imperative that all parties be cited, particularly if an order for costs is sought. As such, the court could only consider the single employee who had been cited as the respondent. This part of the judgement speaks to the importance of following the correct procedure when compiling pleadings for a review.
In dealing with the grounds of review the court noted that the fact that an arbitration award was only three pages long does not mean that the commissioner failed to apply his mind to the evidence placed before him. There could be instances where a commissioner might narrow the material facts of a dispute into a truncated award. However, the opposite reasoning also applies in that the commissioner could have written an award which is short because he or she did not deal with all the material evidence.
The court further noted that the commissioner must not omit to consider key issues as such an oversight may lead to an unjust and unreasonable decision. Even if a commissioner lists all the facts in the award, this does not necessarily mean that the commissioner applied his mind to each. In supporting its position, the court referred to the decision of Gaga v Anglo Platinum Ltd and Others (2012) 33 ILJ 329 (LAC) in which the Labour Appeal Court held: "Where a commissioner fails to properly apply his mind to material facts… The ensuing decision inevitably will be tainted by dialectical unreasonableness".
In the present case, the commissioner erred in considering the incorrect commencement dates of the contracts, which the court found to be a material error in that such dates are critical, especially when a determination as to compensation is required.
Crucially, the court further found that the commissioner did not "bother himself to deal with the nature of the employment relationship". Considering the facts of this case, the nature of the employment relationship was paramount because the employees were employees of a labour broker rather than employees of the client. In this matter, there were two contacts which were dependent on each other, namely the contact between Workforce and Rand Water and the contract between the employees and Workforce. The court found that there was nothing to show that the commissioner had considered this important issue pertaining to the relationship between the parties.
In failing to consider material evidence and failing to give reasons for his decision, the commissioner denied the parties a just and fair process, resulting in a conclusion which was both unreasonable and prejudicial. Citing the decision, Sidumo and Another v Rustenbiurg Platinum Mines Ltd and Others (2007) 28 ILJ 2405 (CC), the court found that the decision was one which a reasonable decision-maker could not have reached. Therefore, this decision has solidified the duty of a commissioner to consider the material evidence before them and give a coherent award which is substantiated by reasoning which objectively, is rationally connected to the evidence tendered.