The criterion of justifiability as a ground for review following Sidumo v Rustenburg Platinum Mines (2007) 12 BLLR 1097 (CC)
- Fischat, Herbert Robert James Falconer
- Authors: Fischat, Herbert Robert James Falconer
- Date: 2013
- Subjects: Arbitration, Industrial -- South Africa , udicial review -- South Africa , Dispute resolution (Law) -- South Africa , Mineral industries -- South Africa -- Employees , Conflict of laws -- Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10246 , http://hdl.handle.net/10948/d1019792
- Description: This treatise will focus on the review of labour arbitration awards provided for under the oversight of the Commission for Conciliation, Mediation and Arbitration (CCMA), bargaining councils, statutory councils, accredited private agencies and approved private arbitration tribunals. The general grounds of review applicable to the arbitration awards of the different bodies are set out. Thereafter the case of Carephone (Pty) Limited v Marcus NO & others (1998) 19 ILJ 1452 (LAC) is analysed and the core principles pertaining to the justifiability test are clarified for the first time in the forum of the Labour Appeal Court. The judicial rationale for the relevance and applicability of the test to CCMA arbitration proceedings and criticisms of the test are examined. The justifiability tests are only applicable to review proceedings in CCMA matters and not available to private arbitration review matters. There are however three approaches which are being suggested for the application of the justifiability tests to private arbitration review. Firstly, it is suggested that the Arbitration Act could be interpreted to include the justifiability test under the statutory review grounds. Secondly, the arbitration agreements could be interpreted to include an implied term that the arbitrator is under a duty to give justifiable awards. Finally, it can be submitted that the law should be developed by reading into all arbitration agreements the ability to arbitrators to give justifiable awards. Since the judgment of Sidumo v Rustenburg Platinum Mines [2007] 12 BLLR 1097 (CC) various critical questions arose in relation to the interpretation and application for the purpose of dealing with subsequent review applications. Firstly, this research paper will seek to establish whether the courts in subsequent matters to the Sidumo judgment have interpreted reasonableness as a test or ground for review. Secondly the research paper will scrutinise case law whether the reviewing court is entitled to rely on and consider reasons other than those provided for by the commissioner in his award to determine inter alia, the reasonableness of his decision arrived at. The Constitutional Court in the Sidumo case rejected the so-called employer’s test, stating that ultimately the commissioner’s sense of fairness is what must prevail and not the employer’s view. Consequently an impartial determination whether or not a dismissal was fair is likely to promote labour peace amongst the labour force. The test arrived at by the Constitutional Court in the Sidumo case for determining whether a decision or arbitration award of a CCMA commissioner is reasonable, is a stringent test that will ensure that such awards are not easily interfered with. The question to be asked in determining whether there has been compliance with the standard is whether the decision of the commissioner is one which a reasonable decision maker could have reached. This approach will underpin the primary objectives of the Labour Relations Act which is the effective resolution of disputes. This finding will be apparent from important cases decided and discussed after the Sidumo landmark ruling.
- Full Text:
- Date Issued: 2013
- Authors: Fischat, Herbert Robert James Falconer
- Date: 2013
- Subjects: Arbitration, Industrial -- South Africa , udicial review -- South Africa , Dispute resolution (Law) -- South Africa , Mineral industries -- South Africa -- Employees , Conflict of laws -- Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10246 , http://hdl.handle.net/10948/d1019792
- Description: This treatise will focus on the review of labour arbitration awards provided for under the oversight of the Commission for Conciliation, Mediation and Arbitration (CCMA), bargaining councils, statutory councils, accredited private agencies and approved private arbitration tribunals. The general grounds of review applicable to the arbitration awards of the different bodies are set out. Thereafter the case of Carephone (Pty) Limited v Marcus NO & others (1998) 19 ILJ 1452 (LAC) is analysed and the core principles pertaining to the justifiability test are clarified for the first time in the forum of the Labour Appeal Court. The judicial rationale for the relevance and applicability of the test to CCMA arbitration proceedings and criticisms of the test are examined. The justifiability tests are only applicable to review proceedings in CCMA matters and not available to private arbitration review matters. There are however three approaches which are being suggested for the application of the justifiability tests to private arbitration review. Firstly, it is suggested that the Arbitration Act could be interpreted to include the justifiability test under the statutory review grounds. Secondly, the arbitration agreements could be interpreted to include an implied term that the arbitrator is under a duty to give justifiable awards. Finally, it can be submitted that the law should be developed by reading into all arbitration agreements the ability to arbitrators to give justifiable awards. Since the judgment of Sidumo v Rustenburg Platinum Mines [2007] 12 BLLR 1097 (CC) various critical questions arose in relation to the interpretation and application for the purpose of dealing with subsequent review applications. Firstly, this research paper will seek to establish whether the courts in subsequent matters to the Sidumo judgment have interpreted reasonableness as a test or ground for review. Secondly the research paper will scrutinise case law whether the reviewing court is entitled to rely on and consider reasons other than those provided for by the commissioner in his award to determine inter alia, the reasonableness of his decision arrived at. The Constitutional Court in the Sidumo case rejected the so-called employer’s test, stating that ultimately the commissioner’s sense of fairness is what must prevail and not the employer’s view. Consequently an impartial determination whether or not a dismissal was fair is likely to promote labour peace amongst the labour force. The test arrived at by the Constitutional Court in the Sidumo case for determining whether a decision or arbitration award of a CCMA commissioner is reasonable, is a stringent test that will ensure that such awards are not easily interfered with. The question to be asked in determining whether there has been compliance with the standard is whether the decision of the commissioner is one which a reasonable decision maker could have reached. This approach will underpin the primary objectives of the Labour Relations Act which is the effective resolution of disputes. This finding will be apparent from important cases decided and discussed after the Sidumo landmark ruling.
- Full Text:
- Date Issued: 2013
Towards an efficient Namibian labour dispute resolution system : compliance with international labour standards and a comparison with the South African system
- Authors: Musukubili, Felix Zingolo
- Date: 2013
- Subjects: Dispute resolution (Law) -- Namibia , Dispute resolution (Law) -- South Africa , Labor laws and legislation , Arbitration, Industrial -- Namibia , Arbitration, Industrial -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:10243 , http://hdl.handle.net/10948/d1018942
- Description: The thesis examines the Namibian labour dispute resolution system by undertaking a comparative analysis of South African and international labour standards. It describes the legal provisions that exist for the effective and efficient resolution of labour disputes through an alternative dispute resolution (ADR) system, which is given recognition in national labour legislation, and in a number of international labour standards and regional labour instruments. It argues for the provision of a proactive and expeditious dispute resolution system that helps to resolve labour disputes in the most effective and efficient manner, without necessarily having to resort to the courts. The study examines the provisions of relevant international labour standards on labour dispute resolution to ascertain their adequacy as part frameworks that apply to Namibia and South Africa’s obligation to provide ADR systems that respond to the needs of the labour relations community. It is argued that ratifying particular ILO conventions creates obligations to comply with their provisions, and to apply them in national legislation and in practice. It is further argued that by having ratified those international labour standards that provide for ADR, Namibia assumes specific obligations under international law, enjoining the country to provide the required ADR system of conciliation and arbitration, which is credible and trusted by disputants and the general public. A comparative approach is adopted, which relies on primary and secondary sources of data, thereby undertaking an in-depth content analysis. The focus of the comparison is on whether the South African ADR system can inform Namibia’s application of its newly adopted ADR system. South Africa has a labour dispute resolution system that has influenced Namibian labour law, prompting Namibia to borrow its ADR system from South Africa’s advanced Commission for Conciliation Mediation and Arbitration (CCMA). In this sense, it is submitted that there are fundamental similarities and differences in the two respective systems. Ideally, disputes should be resolved at conciliation level, resulting in the minority of disputes being referred to arbitration or the Labour Court. In terms of implementation, it is argued that despite the international obligation and commitment to provide and make available free and expeditious ADR services, there are gaps that exist between the legal framework regulating the ADR system and the application thereof in practice, making the attainment of effective and efficient labour dispute resolution difficult. Disputes should be resolved as quickly and informally as possible, with little or no procedural technicalities, and without allowing them to drag on indefinitely, offering immediate solutions instead. This is far from the reality of the situation. In contrast, the study found that although the Labour Act, 2007 and the South African Labour Relations Act (LRA) have brought statutory dispute resolution within the reach of the ordinary worker, these Acts may have compounded the problems relating to dispute resolution in the respective countries. The statutes in question have created sophisticated systems of dispute resolution in which most role players are seen as failing to operate as a result of the complex and technical processes of dealing with disputes. For this reason, the author proposes several remedial interventions that look to the future and the continued provision of fast, effective and user-friendly ADR services. Solving these problems and making effective and efficient labour dispute resolution a reality calls for renewed commitment from government and social partners and investment in appropriate human and financial resources. This requires a strong political will as well as concerted efforts from all role players in the labour relations community in the two respective countries.
- Full Text:
- Date Issued: 2013
- Authors: Musukubili, Felix Zingolo
- Date: 2013
- Subjects: Dispute resolution (Law) -- Namibia , Dispute resolution (Law) -- South Africa , Labor laws and legislation , Arbitration, Industrial -- Namibia , Arbitration, Industrial -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:10243 , http://hdl.handle.net/10948/d1018942
- Description: The thesis examines the Namibian labour dispute resolution system by undertaking a comparative analysis of South African and international labour standards. It describes the legal provisions that exist for the effective and efficient resolution of labour disputes through an alternative dispute resolution (ADR) system, which is given recognition in national labour legislation, and in a number of international labour standards and regional labour instruments. It argues for the provision of a proactive and expeditious dispute resolution system that helps to resolve labour disputes in the most effective and efficient manner, without necessarily having to resort to the courts. The study examines the provisions of relevant international labour standards on labour dispute resolution to ascertain their adequacy as part frameworks that apply to Namibia and South Africa’s obligation to provide ADR systems that respond to the needs of the labour relations community. It is argued that ratifying particular ILO conventions creates obligations to comply with their provisions, and to apply them in national legislation and in practice. It is further argued that by having ratified those international labour standards that provide for ADR, Namibia assumes specific obligations under international law, enjoining the country to provide the required ADR system of conciliation and arbitration, which is credible and trusted by disputants and the general public. A comparative approach is adopted, which relies on primary and secondary sources of data, thereby undertaking an in-depth content analysis. The focus of the comparison is on whether the South African ADR system can inform Namibia’s application of its newly adopted ADR system. South Africa has a labour dispute resolution system that has influenced Namibian labour law, prompting Namibia to borrow its ADR system from South Africa’s advanced Commission for Conciliation Mediation and Arbitration (CCMA). In this sense, it is submitted that there are fundamental similarities and differences in the two respective systems. Ideally, disputes should be resolved at conciliation level, resulting in the minority of disputes being referred to arbitration or the Labour Court. In terms of implementation, it is argued that despite the international obligation and commitment to provide and make available free and expeditious ADR services, there are gaps that exist between the legal framework regulating the ADR system and the application thereof in practice, making the attainment of effective and efficient labour dispute resolution difficult. Disputes should be resolved as quickly and informally as possible, with little or no procedural technicalities, and without allowing them to drag on indefinitely, offering immediate solutions instead. This is far from the reality of the situation. In contrast, the study found that although the Labour Act, 2007 and the South African Labour Relations Act (LRA) have brought statutory dispute resolution within the reach of the ordinary worker, these Acts may have compounded the problems relating to dispute resolution in the respective countries. The statutes in question have created sophisticated systems of dispute resolution in which most role players are seen as failing to operate as a result of the complex and technical processes of dealing with disputes. For this reason, the author proposes several remedial interventions that look to the future and the continued provision of fast, effective and user-friendly ADR services. Solving these problems and making effective and efficient labour dispute resolution a reality calls for renewed commitment from government and social partners and investment in appropriate human and financial resources. This requires a strong political will as well as concerted efforts from all role players in the labour relations community in the two respective countries.
- Full Text:
- Date Issued: 2013
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