The judicial review of CCMA awards in South Africa

Abstract

The Labour Relations Act 66 of 1995 (“LRA”) brought fundamental changes to the South African labour dispute resolution system. The LRA is a codification of section 23 of the Constitution, being the right to fair labour practices. In line herewith employees are protected from being unfairly dismissed or having unfair labour practices committed against them by the employer.

An aggrieved employee is entitled to challenge the dismissal or the unfair labour practice at the Commission for Conciliation, Mediation and Arbitration (“CCMA”). A right to review the outcome thereof rests with the Labour Court.

Prior to the enactment of the LRA an employee had the right to appeal the outcome of the Industrial Court. The appeal process has subsequently been replaced with a review. The grounds for review are limited and set out in section 145(2)(a) of the LRA.

Together with the grounds listed in section 145(2)(a) of the LRA, the Constitutional Court in Sidumo has formulated the test for reasonableness being; whether the decision reached by a commissioner is one that a reasonable decision-maker could reach?

Since Sidumo, litigants have struggled to understand the impact the test has on the listed grounds for review and the Labour Court grapples with the level of intensity that it may delve into the merits of the matter. Inconsistent application of the review test continuous and some authors call for a return of the review, while others suggest that statutory reform is necessary.

This study suggests that section 145(2)(a) of the LRA should be amended to include reasonableness as a ground for review and to allow the listed grounds to stand separate from the Sidumo requirement.