The review test restated
The review test restated
In the recent judgment of Makuleni v Standard Bank of SA (Pty) Ltd and Others  44 ILJ 1005 (LAC), the Labour Appeal Court (LAC) reaffirmed the test for the review of a Commission for Conciliation, Mediation and Arbitration (CCMA) arbitration award. Interestingly, the LAC was critical of the arbitrator for not allowing legal representation in arbitration proceedings that became protracted and seemingly chaotic.
At a glance
- The recent judgment of Makuleni v Standard Bank of SA (Pty) Ltd and Others reaffirmed the test for the review of a CCMA arbitration award in South Africa.
- The Labour Appeal Court (LAC) criticized the arbitrator for not allowing legal representation in the arbitration proceedings, which led to a chaotic hearing.
- The LAC emphasized that the review of a CCMA award requires a high threshold and that the decision must be one that no reasonable decision maker could reach based on the available evidence. The involvement of legal practitioners in such disputes can help ensure a rational and well-informed award.
Ms Makuleni, a branch manager, was dismissed by her employer on 12 January 2018, for misconduct. She was found guilty of communicating with her subordinates in a manner that was “disrespectful, offensive and childish”; shouting and directing “inappropriate words (vulgar language)” at her subordinates in front of colleagues and customers; and failing to “motivate [the] team and to value the ideas raised” by them. These offenses were alleged to have taken place over a period of two years from 2015 to 2017.
Makuleni referred an alleged unfair dismissal dispute to the CCMA. Her request for legal representation was denied by the arbitrator. A decision the LAC found the arbitrator “might well have had reason to regret”. The resultant arbitration hearing was shambolic. It involved nine witnesses and 1,287 pages of evidence, much of it disorganised and sometimes little more than waffling. The arbitrator found amongst other things, that the employer’s witnesses were not credible or reliable – given that their “evidence … was replete with innuendo, opinion and speculation. The witnesses failed to succinctly state how or when the [appellant] treated them in a manner that is disrespectful, offensive and childish.” Furthermore, the “charges were drafted in vague terms because very few such episodes could be identified as to time and context”. The arbitrator found that Makuleni had been unfairly dismissed and ordered her reinstatement. The employer, unhappy with the decision, took the matter on review to the Labour Court.
On the merits the Labour Court took a different view to the CCMA arbitrator. On 22 September 2021 the Labour Court reviewed and set aside the arbitrator’s decision. The Labour Court considered, amongst other things, that there was no motive for the employer’s witnesses to lie about Makuleni’s conduct, there was no proof of a conspiracy against Makuleni, and the arbitrator did not assess the evidence wholistically.
Before the LAC
Makuleni, unhappy with that outcome, took the matter on appeal. The LAC found that the Labour Court’s rationale for setting aside the award could not stand. It found that the Labour Court had misapplied the test for review and that the court had been misled into treating the case for review as if it were an appeal. The LAC inferred that the Labour Court had yielded to the seductive power of a lucid argument that the result could be different. The LAC held that even if the perspective of the Labour Court, in disagreeing with the arbitrator’s findings, was plausible and reasonable, that was an insufficient reason to set aside the arbitration award. To do so would amount to an appeal and not a review. To meet the review test the result of the award has to be so egregious that, as the review test requires, no reasonable person could reach such a result. The LAC found that at the heart of the review exercise is a fair reading of the award, in the context of the body of evidence adduced and an even-handed assessment of whether such conclusions are untenable. Only if the conclusion is untenable is a review and setting aside warranted.
Quoting the judgment in Head of Department of Education v Mofokeng and Others  36 ILJ 2802 (LAC) para 31, the LAC reiterated that:
“… [the] court must nonetheless still consider whether apart from the flawed reasons of or irregularity by the arbitrator, the result could be reasonably reached in light of the issues and the evidence … To repeat flaws in the reasoning of the arbitrator evidenced in the failure to apply the mind, reliance on irrelevant considerations or the ignoring of material facts, etc must be assessed with the purpose of establishing whether the arbitrator has undertaken the wrong enquiry, undertaken the enquiry in a wrong manner or arrived at an unreasonable result. Lapses in lawfulness, latent or patent irregularities and instances of dialectical unreasonableness should not be of such an order (singularly or cumulatively) as to result in a misconceived enquiry or a decision which no reasonable decision maker could reach on all the material that was before him or her.”
The LAC found that the court a quo had failed to recognise that, with the available (albeit often incoherent and often disorganised) evidence, the arbitrator had reached a reasonable decision, in that the employer had failed to discharge the onus to show that the dismissal was fair.
The LAC found that just because there was evidence that Makuleni was an unpopular boss who was “exacting, demanding, inclined to micro-manage and be authoritarian”, it did not prove the offences. If anything, she was employed at the particular branch of the employer because it was “in need of rehabilitation owing to it having been neglected and ill-discipline having set in”.
In its conclusion the LAC referred to the often robust nature of CCMA arbitrations and how the evaluation of factual disputes was hard work. Different “triers of fact” will often have different assessments of the facts. The less coherent the evidence, the more likely it is that there will be divergences in the assessment of the fact.
Lessons from the judgment
Proceedings in the CCMA are meant to be simple and expeditious. The general provisions for arbitration proceedings require that a Commissioner must conduct arbitration proceedings in a manner that is appropriate to determine the matter “quickly and fairly … with the minimum of legal formalities”. As the LAC observed, “[the] degree of robustness which characterises the reality of CCMA arbitrations is exactly the rationale for subjecting them to a review and not an appeal. The courts must be cautious not to undermine the legislative intent.”
Reviews are not there simply for the taking. The threshold to meet the test for the review of a CCMA award is extremely high. The test is not that the arbitrator came to an incorrect decision. This is the basis for an appeal. The test requires that the arbitrator’s decision must be a decision which no reasonable decision maker could reach on all the material that was before them.
Although the issue of legal representation being refused at the arbitration hearing was not raised as a ground in either the review or the appeal, given the chaotic nature of arbitration proceedings conducted by lay persons, the LAC nevertheless felt inclined to comment that:
“[Why] it is so often glibly imagined that a matter involving only disputes of facts which will require credibility findings will be more appropriately adjudicated without the utility of legal expertise to adduce the cogent evidence coherently and conduct cogent cross-examination eludes me.”
Although legal representatives are often excluded from CCMA unfair dismissal arbitrations, because they are viewed as too formalistic, procedural, and apparently divorced from the solution-driven ideals of the CCMA, this case illustrates that often the involvement of legal practitioners in these types of disputes does assist the decision maker by narrowing the issues in dispute and by presenting evidence in a logical and cogent manner leading to a rational and better informed award.
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