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Are you allowed to challenge an arbitrators' decision?

by , 26 February 2014
There's a lot of confusion regarding labour disputes. One of the issues that always crops up is whether or not employers can challenge an arbitrators' decision. Continue reading to find out what the law says about this.

The answer to the above question is 'yes'.

An arbitrators' decisions isn't always final, you can challenge it

In terms of Section143 (1) of the Labour Relations Act (LRA), an arbitration award is final and binding.

Labour Expert, lvan lsraelstam explains in a Skills Portal article that this section misleads employers and employees into believing that they can't apply for an arbitrator's decision to be overturned.

This is an incorrect assumption.

lsraelstam says 'either party can take the arbitrator's conduct on review to the Labour Court if they're able to prove that the arbitrator, in making his award, has materially broken a rule thereby committing misconduct.'

Note: 'This is different to an appeal because an appeal is made, not against the arbitrator's conduct, but rather against his decision.'

Misconduct by an arbitrator could arise in these instances:

According to lsraelstam, arbitrator 'misconduct' can and does occur in many different forms including, amongst others:

  • Bias;
  • Interrogation of witnesses;
  • Failure to keep records
  • Ignoring of evidence;
  • Refusal to allow a party the right to question witnesses or bring evidence;
  • Failure to apply his mind;
  • Misconstruing of evidence;
  • Overstepping authority;
  • Failure to consider statutory provisions.

While we're still on the issue of challenging decisions, remember that if the CCMA awards against your company, you can't appeal against the decision. BUT you can apply for rescission or request a review.

Experts at the Labour & HR Club say a rescission is when an award is cancelled. It's as if it never existed and the arbitration proceedings start afresh.

Knowing what the law says about arbitrators' decisions will help ensure you enforce your rights when it comes to labour disputes.

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