Is the failure to lead oral arguments a reviewable irregularity?

In the recent decision of The South African Social Security Agency v NEHAWU and others (reportable case number C233/14 delivered on 30 April 2015), the Cape Town Labour Court had to decide whether an arbitration award, in which the commissioner based her finding purely on documentary evidence in the absence of a stated case, was reviewable in terms of s145 of the Labour Relations Act, No 66 of 1995 (LRA).

A 'stated case' – also referred to as a 'special case' – is a written statement of facts, agreed to by the parties, so that a judiciary authority can apply the law to the agreed facts. Importantly, the NEHAWU decision did not involve a stated case. Rather – as noted in the commissioner's arbitration award – the parties had agreed that no evidence would be led and that the case would be decided on the written submissions and bundles of documentary evidence.

The NEHAWU case dealt with the suspension of employees and whether this amounted to an unfair labour practice. The commissioner awarded the sum of R600 to each of the applicants. Although compensation seems minimal, the decision is important because it demonstrates the fundamental role oral evidence plays in labour disputes.

Rabkin-Naiker J failed to comprehend how a dispute which "hinges on the fairness of the conduct of an employer can be decided without the parties giving oral evidence". Referring to the benchmark case of Gold Field Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration & others (2014) 35 ILJ 943 (LAC), Rabkin-Naiker J highlighted the various questions which the Labour Court is required to consider when reviewing an arbitration award:

• "In terms of his or her duty to deal with the matter with the minimum of legal formalities, did the process that the arbitrator employ give the parties a full opportunity to have their say in respect of the dispute?

• Did the arbitrator identify the dispute he or she was required to arbitrate? (This may in certain cases only become clear after both parties have led their evidence).

• Did the arbitrator understand the nature of the dispute he or she was required to arbitrate?

• Did he or she deal with the substantial merits of the dispute?

• Is the arbitrator's decision one that another decision maker could reasonably have arrived at based on the evidence"?

The court concluded that the answer to all of the above questions was in the negative. It was accordingly held that the process used by the commissioner in the current matter did not allow for a due and proper arbitration of the dispute as the commissioner based her award solely on the parties' written submissions. In particular, the commissioner's decision turned on the fact that the employer did not reply to the employees' written argument that the suspensions exceeded the 60 days provided for in the employer's own disciplinary code. The arbitration award was thus set aside and the dispute referred back to the CCMA to be heard before a different commissioner.

The important principle to be extracted from this case is that, in the absence of a stated case, oral evidence must be led on the material facts in dispute. Commissioners and arbitrators should not condone an agreement between the parties to lead no oral evidence.