GRIEVANCE

MANAGEMENT

COMMUNIQUE

SOUND RELATIONS — KEY

TO EMPLOYMENT RELATIONS

Volume 3

Fairness, trust, reasonableness and equity are some of

the principles upon which labour relations is premised. In

order to ensure and

maintain sound labour

relations in the workplace,

both parties to an

employment relationship

should pay close attention

to the underlying values

and principles that

underpins this type of

marriage. It is therefore

imperative that none of

them are taken for

granted, but that there is concerted effort to continuously

evaluate the state of relations and improve on any of the

areas that seem to be threatened in any way by conduct

of either party, and where necessary review policies and

prescripts governing the workplace.

CONTENTS

Volume 3 of this Communique

focuses on the following

topics:

Grievances: unfair

treatment…………p. 2

Duty to give reasons for

decisions taken……p.8

The impact of the Labour

Relations Amendment Act 6 of

2014 on review of arbitration

awards………..p. 13

Good story to tell………… p.16

Laws, policies and

regulatory frameworks

may not be able to

transform an

employee’s personality,

attitude or behaviour

pattern, but they can

assist in ensuring that

certain behaviours and

actions are managed

and controlled to

promote sound labour

relations.

2

GRIEVANCES: UNFAIR

TREATMENT

Parties to an employment relationship spend

most of their time at the workplace, be it private

sector or public sector employment. In the

Public Service sector, most employees spend

not less than eight hours at work and few hours

are spent with families or for social activities on

a daily basis.

In any workplace, people come with different

attitudes, behavioural patterns, personalities

and cultural diversity. The workplace

environment is managed and controlled with

laws applicable to a particular sector and

supplemented by policies and regulatory

frameworks which are context sensitive. The

laws, policies and regulatory frameworks

further promote labour peace between the

employer and employees, as well as inter-

relations among employees themselves. Whilst

critical and necessary, laws, policies and

regulatory frameworks may not be able to

transform an employee‟s personality, attitude or

behavioural pattern, but they can assist in

ensuring that certain behaviours and actions

are managed and controlled to promote sound

labour relations, healthy working environments

and to ensure a productive labour force.

Whilst the Labour Relations Act, 1995

does not identify behaviours or actions

that might be found to be unfair, section 23 (1)

of the Constitution of South Africa 1 states that

"everyone has the right to fair labour practice".

It also provides in section 10 that “everyone

has inherent dignity and has the right to have

their dignity respected and protected”. In

Murray v Minister of Defence (2008) 29 ILJ

1369 (SCA), the Court held that “Developed as

it must be to promote the spirit, purport and

objects of the Bill of Rights, the common law of

employment must be held to impose on all

employers a duty of fair dealing at all times with

their employees.” Section 6(1) of the

Employment Equity Act affirms section 23(1) in

that “no person may unfairly discriminate,

directly or indirectly, against an employee, in

any employment policy or practice, on one or

more grounds….”2 The Public Service is also

regulated by, inter alia, the Public Service Act,

1994 as amended, the Public Service

Regulations, 2001 as amended by the Public

Service Regulation, 2016, the Code of Conduct

for the Public Service and other laws and

prescripts applicable to employees employed in

different departments within the Public Service.

The Public Service Commission is

mandated, in terms of section 196 (4)(f)(ii) of

the Constitution, to consider grievances of the

employees in the public service. These include

grievances relating to unfair treatment:

1 The Constitution of the Republic of South

Africa, 1996 (Act No. 108 of 1996) 2 The Employment Equity Act 55 of 1998

3

Investigating unfair treatment

grievance cases

Unfair treatment may emanate from [a]

implementation / non-implementation of a

policy or procedure, or granting or denying of

a right (First Category). It may also emanate

from [b] a conduct or omission not necessarily

documented or prescribed in a particular law,

policy or procedure (Second Category). The

former is easy to identify and can easily be

proven by the person making the allegation,

or disproved by the person being accused or

an institution against whom the claim is made.

It is also easy for an investigator to determine

whether or not there is substance on the

matter since the allegation is tested against

the applicable legal or regulatory framework

that is clearly outlined on paper.

Actions or omissions not necessarily

documented or prescribed in a particular law,

policy or procedure are often difficult to

substantiate. A number of incidents, which

although totally different and each may have

only happened once, may point to unfair

treatment. It differs from one case to another

since in other cases one instance incidents

may not be substantiated but be found to be

mere coincidence of justified conduct or

omission or even mere perceptions on the part

of the aggrieved. Bullying, on the other hand,

requires repeated action.

When an employee alleges unfair treatment

he / she must be specific as to exactly what

conduct / action / omission he / she regards as

unfair treatment. He / she must explain the

exact details of the incident and provide

specific details such as the date and where

possible also the time of the alleged incident,

as well as names and contact details of

witnesses. This is especially so with regard to

the second category of unfair treatment. The

same applies where repeated conduct is

alleged to have happened. All the necessary

details of unfair treatment relating to when,

what, how and where should be provided in

order to enable the investigator to probe into

the matter.

It may not always be easy to determine

when an incident falling under the second

category happened for the first time, and if it is

an innocent mistake or whether the affected

employee is overly-sensitive. It is therefore

advisable for the affected employee to

approach the person involved and attempt to

resolve the issue with him/her first. During

investigation the investigator should ask the

aggrieved employee what he or she did in

order to address the conduct he or she regards

as unfair: whether he or she approached the

alleged perpetrator on his or her action, or not;

and the reason why this was not done if it be

the case. The aggrieved employee must,

however, ensure that even though he or she

attempts to resolve the issue as close to the

4

point of origin as possible, he or she still lodges

a grievance within the 90-day period prescribed

in the Grievance Rules 2003 (PSCBC,

Resolution 14 of 2002), if the attempt to resolve

the matter takes too long to conclude.

If after lodging the grievance the department

fails to deal with the grievance within the

prescribed timeframe (currently 30 days for

levels 2-12 and 45 days for SMS members),

the grievance may be referred to the PSC.

Most unfair treatment cases referred to the

PSC fall under the second category and

investigations often reveal that there are

interpersonal relations problems between the

aggrieved employee and the supervisor. This

results in the PSC recommending mediation,

counseling or training on conflict management.

In some instances, the PSC‟s investigators

would mediate and resolve the cases in an

informal manner.

Examples of second category unfair

treatment grievances dealt with by the

PSC

Grievance on unfair treatment

(undermining behaviour)

The aggrieved alleged that the supervisor

demonstrated authoritarian behaviour towards

him. The supervisor had instructed the

aggrieved to accompany him to attend an

urgent matter of stock theft. However the

aggrieved informed the supervisor that he was

unable to accompany him because he had

planned a meeting with his subordinate weeks

prior to the matter at hand. From the analysis

of facts and reasons provided by both the

supervisor and the aggrieved, the PSC

concluded that that the supervisor‟s instruction

was lawful and reasonable and that the

aggrieved‟s planned meeting with his

subordinate could not supersede the urgent

matter he was instructed to attend to with his

supervisor. The grievance was found to be

unsubstantiated.

Grievance on unfair treatment (unfair

discrimination)

The aggrieved alleged that he was unfairly

discriminated by the Department when he was

requested to vacate a parking bay which was

allocated to him without being offered

alternative parking within the department. He

referred to the Department‟s Parking Policy

which provided that preference is given to

Government owned vehicles and that there are

levels of prioritization (in terms of rank) for

parking bays. The PSC found that the

Department‟s Parking Policy which was used to

arrive at a decision in this case was out-dated

and could not be applied to the aggrieved in

that in 2010, the department allocated a

parking bay to him (the aggrieved), after the

said Policy had come into effect, even though

5

he did not fall under the levels of prioritization.

The PSC has found the grievance to be

substantiated.

Unfair treatment: Labour experts’

perspective

When considering differences in people‟s

behavioural patterns, the employer-employee

relationship often results into conflict. Conflict

could result in unfair treatment towards one

another. Unfair treatment could come from

either the employee or the employer. It could

come from the employer directed to the

employee or from the employee directed at

fellow employees. Unfair treatment (conduct) is

a wide concept that is inclusive of

discrimination which could be classified as fair

or unfair conduct; it may be unfair without being

discriminatory, while discrimination is a species

of unfair conduct.3 The key word around these

two concepts is “unfair”. The Collins Concise

Dictionary defines the word "unfair" as

"characterised by inequality or injustice,

dishonest or unethical". The practice of unfairly

treating a person or group of people differently

from other people or groups of people refers to

discrimination. As such, this simply means

unfair treatment refers to discrimination which

is unfair. Such discriminatory practice may

result in employees lodging grievances or the

employer instituting disciplinary action. It is

3 Workplace law 10

th ed. by John Grogan

common-cause that employees often fall victim

to unfair treatment more than the employer.

In one way or another, employees respond

to notions of fairness or unfairness in a

predictable manner. They compare the

treatment they receive and the treatment

received by others. The issue of fairness takes

centre stage, since people tend to compare

how they are treated as against how others are

treated, and how such treatment is compatible

and fair. In spite of the Dictionary definition,

everybody has their own definition or

perception [of fairness], noting that many

people don't question fairness when it works to

their advantage. “Example: We don't have as

much of a problem about being overpaid as

being underpaid”.4 The preceding discussion

and example illustrate the importance of

objectivity and context when one makes a

judgement about fairness.

The sections below provide details on

different types of conduct that can be regarded

as or can result in unfair treatment.

Bullying

There are different definitions of bullying by

different authors. Most of these definitions refer

to repeated or persistent intimidating conduct.

According to Smit DM, Bullying in the

4 http://www.hreonline.com/HRE/view/story

6

Workplace: Towards a Uniform Approach in

South African Labour Law, 2014, the

International Labour Organisation (ILO) does

not define workplace bullying as such, but

allows for country-specific definitions, taking

into consideration culture and other factors.

Smit states that the closest to a uniform

definition put forward by the ILO is found in the

workplace violence, which is described as “all

actions, incidental or behaviour which is

beyond reason, or acceptance; by which a

person is hurt, threatened, humiliated if injured

by another, as a direct result of carrying out

their professional activity.” Smit says the

proposed definition of bullying that allows for a

single serious act to be branded as bullying is

almost isolated in literature. She defines

bullying as an act of harassment which can be

described as repeated, health-harming or

mistreatment of one or more persons (the

targets) by one or more perpetrators.

Authors like Prof Alan Rycroft define

workplace bullying as unwanted conduct in the

workplace which is persistent or serious and

demeans, humiliates or creates a hostile or

intimidating environment or is calculated to

induce submission by actual or threatened

adverse consequences.5 According to Rycroft,

acts of bullying include physical assault and

aggression, verbal abuse, intolerance of

psychological, medical or personal problems,

5 22

nd Annual Labour Law Conference facilitated

by LexisNexis

humiliating or demeaning conduct,

marginalisation, abuse of disciplinary

processes, demotion or transfer, pressure to

engage in illegal activities, recommendation or

pressure to resign and creating an unhealthy

working environment.

Employees who are subjected to this type of

unfair treatment experience emotional stress,

impatience, poor performance and low work

moral. Employers may face serious challenges

in the cases where policies and procedures are

not put in place to deal with bullying. This may

lead to requests for transfers, resignations and

extended sick leave periods.

Harassment

Harassment may be defined as belittling or

threatening behaviour directed at an individual

worker or a group of workers. Acts of

harassment include the misuse of power or

position by a superior, victimisation, degrading

a person in the presence of others by passing

remarks about their work performance, their

brain power or the lack of it, any unfair

treatment based on arbitrary grounds such as

race, gender, sexual orientation, religion etc.,

or even making unwelcome sexual advances,

which of course constitute sexual harassment.6

6 http://www.labourguide.co.za/discipline-

dismissal/373-harassment-in-the-workplace

7

In the event where the employer fails to

deal with harassment, an employee can make

a claim in the employment tribunal (e.g. CCMA,

bargaining councils, courts) against both the

employer and the perpetrator. However, where

the employer shows that reasonable steps

were taken to prevent the harassment, a claim

can be made against the perpetrator alone. It

can include things like overloading a person

with work in the hope that they will fail,

constantly criticising them regarding their work

performance, but at the same time not

criticising any specific aspect of the work

performance.

Discrimination

The Employment Equity Act, 1998, section

6(1) prohibition of unfair discrimination (our

underlining) states that “no person may unfairly

discriminate, directly or indirectly against an

employee in an employment practice on one or

more grounds including; race, gender sex,

pregnancy, marital status, family responsibility,

ethnic or social origin, colour, sexual

orientation, age, disability, religion, HIV status,

conscience, belief, political opinion, culture,

language, and birth”. The Act intends to

achieve equality through affirmative action

measures to prohibit and prevent discrimination

on the grounds listed above. Chapter 2 of the

Promotion of Equality and Prevention of Unfair

Discrimination Act 4 of 2000 gives effect to

section 9 read with section 23(1) of the

Constitution of South Africa which is aimed at

preventing and prohibiting unfair discrimination

and harassment; promoting equality and

eliminating unfair discrimination; and

preventing and prohibiting hate speech.7

There is a distinction between unfair

treatment and discrimination. While

discrimination is a form of unfair treatment the

two are not the same. Discrimination is deemed

here to be „unfair‟ when it leads to procedures,

interactions and distributions that do not adhere

to the „fairness‟ criteria applicable to the matter

in question.

Discrimination occurs in many forms of

treatment, as the Act states amongst others “it

may be in a form of gender, race, age, or

grounds of disability”. It could either be fair or

unfair. Discrimination that is fair should be

aimed at achieving the affirmative action

measures as stipulated in the Employment

Equity Act, 1998, while unfair discrimination

would occur mostly as a result of the

implementation of policies or personnel

practices which are arbitrary or aimed at

disadvantaging a particular person as a result

of his belief, colour, disability or age.

Discrimination which is unfair results in

employees being dissatisfied. According to

Ivan Israelstam of Labour Law Management

Consulting, the act of the employer would

7 Promotion of /equality and Prevention of

Unfair Discrimination Act 4 of 2000

8

seem to be unfair if it is one-sided,

unnecessary and / or inappropriate under the

circumstances or infringes on the employee‟s

rights.

In Ditsamai v Gauteng Shared Services

Centre (JS746/06), the Court held that “an

employee is entitled to claim damages for

unfair discrimination under the EEA after

successfully instituting action for unfair

dismissal under the LRA. The second action is

not res judicata as the relief and cause of

action is located in different legislation”.8 (Res

judicata means matter that has already judged

or determined).

It should therefore be noted that protection

against unfair discrimination housed in the Acts

is also enforced by the judiciary. As such,

victims of unfair discrimination have recourse

to correct the arbitrary treatment by those in

power through legal tribunals.

Conclusion

Unfair treatment has no room in the

workplace. Employees who experience unfair

treatment may have a breakdown of trust,

continuity and confidence in the organisation. It

also has a negative effect on life chances and

the achievement of personal goals. On the

contrary, fair treatment generates trust in the

8 Ditsamai v Gauteng Shared Services Centre

(JS746/06), LC

employer‟s rules and procedures, and where

there is trust, there will be greater legitimacy to

the decisions taken

DUTY TO GIVE REASONS FOR

DECISIONS TAKEN AND RIGHT TO BE

GIVEN REASONS

Decision-making can be regarded as the

cognitive process resulting in the selection of a

belief or a course of action among a number of

alternative possibilities. Every decision-making

process produces a final choice that may or

may not prompt action. Decision-making is an

inherent duty at different levels of management

and in different areas in an employer-employee

relationship. In exercising this duty, the

decision-maker must always bear in mind the

compliance obligation of legality, rationality,

accountability and fairness, as well as the duty

to provide reasons to those affected by the

decision, when so requested. It should be

noted that the decision-maker does not only

develop reasons when requested to provide

them, but the reasons should precede decision-

making and must be there even before being

requested.

Labour relations between the employer and

its employees is often soured or negatively

impacted by actions or omissions for which no

reasons are provided by the decision-makers. It

is therefore necessary that reasons are

provided for decisions taken, and where this is

not done, the employee should not hesitate to

9

request same in order to enhance sound

relations.

Providing reasons ensures that authorities,

especially organs of state – (as contemplated

by section 239(b) of the Constitution), exercise

their powers in a manner that is not irrational or

arbitrary. This is premised on the constitutional

values of transparency and accountability as

enshrined in section 195 of the Constitution. As

a result of these values, the duty to give

reasons cannot be avoided. The rule of law,

which is one of the founding values of our

democratic state, does not require authorities to

act arbitrarily and not to account for their

actions or decisions. Accounting for one‟s

decision thus require that the decision-maker

should give reasons for such a decision. See

Mphahlele v First National Bank of SA Ltd 1999

(2) SA 667 (CC) para 12.

In R v. Crown Court at Harrow, exp. Dave,

[1994] 1 All E.R. p. 315, Pill J said that “Refusal

to give reasons might amount to a denial of

natural justice.” In most instances employees

become unhappy and disgruntled as a result of

an administrative decision taken by the

employer during the employment relationship.

Giving reasons is an important component

of procedural fairness. Reasons should be

provided to enable affected parties to assess

the rationality thereof, and also to challenge the

decision-maker where this is found to be

necessary. Lawrence Baxter Administrative

Law (1984) at page 228 made this statement,

which was endorsed by Schutz JA in Transnet

Limited v Goodman Brothers (Pty) Ltd 2001 (1)

SA 853 (SCA) para 5: „In the first place, a duty

to give reasons entails a duty to rationalise the

decision. Reasons therefore help to structure

the exercise of discretion, and the necessity of

explaining why a decision is reached requires

one to address one’s mind to the decisional

referents which ought to be taken into account.

Secondly, furnishing reasons satisfies an

important desire on the part of the affected

individual to know why a decision was reached.

This is not only fair: it is also condusive to

public confidence in the administrative

decision-making process. Thirdly – and

probably a major reason for the reluctance to

give reasons – rational criticism of a decision

may only be made when the reasons for it are

known. This subjects the administration to

public scrutiny and it also provides an important

basis for appeal or review. Finally, reasons

may serve a genuine educative purpose, for

example where an applicant has been refused

on grounds which he is able to correct for the

purpose of future applications.”

Furnishing reasons also provides guidance

to others in similar situations. It also increases

confidence in both the substantive and

procedural fairness and enables the person

against whom a decision was taken to

determine whether or not the decision-maker

10

committed an error of fact or of law in coming

to a conclusion.

In Pharmaceutical Manufacturers

Association of SA: In re Ex Parte President of

South Africa 2000 (2) SA 674 (CC), para 20, it

was held that the principle of legality also

requires that the exercise of public power

should not be arbitrary or irrational. Where

there is a legitimate reason for refusing, such

as state security, that option would still be

open. In Khumalo and Ritchie v MEC for

Education, KZN [2013] ZACC 49 the Court

held, among others, that the fairness of the

decision will typically be weighted heavily on

the process and justification of the decision-

makers.

Grievances involving failure to provide

reasons dealt with by the PSC

Section 195(1(f) of the Constitution provides

that public administration must be accountable.

The PSC has a constitutional obligation to

promote the values and principles enshrined in

section 195 of the Constitution, including this

one. The PSC executes this function in

different areas of its mandate, including when

dealing with grievances of employees in the

public service. As already indicated, giving of

reasons is one of the fundamentals of good

administration. Unless a decision-maker

provides adequate information to explain the

basis on which a decision was reached, any

possible protection which could be given to an

aggrieved person is adversely affected.

The PSC has dealt with numerous

grievances where failure to provide reasons or

an explanation for the decision taken or the

decision-making process, though at times not

stated as such in the grievance forms, formed

an integral part leading to the lodging of the

complaints. In some instances employees do

not take it upon themselves to request

decision-makers to provide them with reasons

but proceed straight away to lodge grievances

without any attempt to engage decision-

makers. In such cases the intention to resolve

the grievance as close to the point of origin as

possible are frustrated.

The following are examples of grievances

dealt with by the PSC relating to the giving of

reasons:

Grievances relating to not being

shortlisted to a post

Grievances in this area include cases where

the aggrieved employees complain for not

being shortlisted for interviews with regard to

posts for which they think they qualify and

should have been shortlisted. The PSC has in

most of these types of grievances found that

there was adequate and justifiable reasons for

not shortlisting the aggrieved employees. For

instance, the aggrieved employee not meeting

11

the minimum requirements of the post. (In

Transnet Limited v Transnet Bargaining

Council and Others Case No. JR 127/ 2010 –

judgement delivered on 30 April 2013, the

Court held that the employer did not commit an

unfair labour practice by not shortlisting one of

its employees who did not have sufficient

management experience which was one of the

essential requirements of the position in terms

of the advertisement.)

The challenge is that departments do not

timeously provide aggrieved employees with

reasons when so requested, thus compelling

aggrieved employees to lodge grievances

which are then referred to the PSC. The other

challenge relates to employees who do not

request reasons at all, but proceed to lodge

grievances immediately after realising that they

were not shortlisted. The PSC encourages

departments to timeously provide reasons

when so requested by employees. Equally

employees should request reasons instead of

rushing to lodge grievances.

Grievances relating to not being appointed

to a post (after attending interviews)

In most of these cases the PSC has found

that departments have failed to provide

reasons to the unsuccessful candidates, but

only indicated in the regret letters that the

candidates were unsuccessful. Departments

must provide employees who request reasons

for not being appointed with adequate reasons

which will enable them to accept that the

decisions and processes were fair. According

to Mureinik E, „Reconsidering review:

Participation and accountability‟ (1993) Acta

Juridica 35 p.46 being a responsive

government means fostering (a) participation

and (b) accountability, which implies that a

reasonable government must justify its

decisions to the people it governs. By

supplying reasons, government justifies its

decisions and opens its thinking process to

those affected by the decisions – thus enabling

them to understand why the decisions were

taken. In Transnet Ltd v Goodman Brothers

(Pty) Ltd 2001 1 SA 853 (SCA) 42, Olivier JA,

held that reasons serve to counteract the

„nepotism and unfair discrimination which lurks

in every corner’ of the administration.

The PSC acknowledges that departments have

the prerogative to appoint or not to appoint.

However, departments also have a duty to be

accountable and transparent by providing

reasons when taking a decision not to appoint.

Grievances relating to not being shortlisted

or appointed to a post, with a further

contention that the selection panel was not

approved or properly constituted

The PSC also investigated grievances

involving allegations that the interview and

selection panels were not approved by the

12

responsible or delegated authority of the

department; or that the panels were not

properly constituted as provided for in the

departments‟ recruitment and selection policies

or procedures. In cases where such allegations

are found to be substantiated, the PSC would

recommend that departments should in future

ensure that it complies with their own policies

and procedures. The PSC would further

recommend that departments should make use

of the provisions of section 5 (7) (a) of the

Public Service Act, 1994, as amended,

which stipulates that “A functionary shall

correct any action or omission purportedly

made in terms of this Act by that

functionary, if the action or omission was

based on an error of fact or law or fraud

and it is in the public interest to correct the

action or omission.”

Departments are reminded in such cases

that compliance with legislation and other

relevant prescripts (e.g. the Public Service Act,

1994; the Public Service Regulations, 2001,

and the department‟s recruitment and selection

policy etc.) is very important since these are

meant to ensure legality and control the

exercise of power by those upon whom this has

been conferred. It is for these reasons that

where the composition of an Interview and

Selection Panel must first be approved by the

Director-General of a department or any

delegated authority, this must be followed

before the shortlist can be finalised and

candidates called for interviews. In instances

where there is a deviation, reasons must be

provided for any deviations from policy

and procedure and the deviations must be

approved by the approving authority first

before any action or decision can be

taken.

Other grievances where departments failed

to provide reasons to aggrieved employees

relate to non-awarding of performance

bonuses, reduction of cash bonuses and

reduction of scores. Departments should at all

times be transparent and provide employees

with information thereby contributing towards

improved relations and an encouraged

workforce.

Conclusion

As a rule of law, all decision-makers must

act fairly and rationally, which means that they

must not make decisions without reasons.

The persons affected by decisions have a

right to know the reasons on which those

decisions are based. At the very least, the

decision-maker must be able to justify his/her

decision.

Decision-making process has to be

procedurally fair, substance must not be

sacrificed for formality. The enabling Acts and

the relevant provisions of the Constitution must

13

be applied, a lawful and proper decision must

be made timeously, and adequate reasons

must be supplied at the end of the process,

upon request. Administrators with assigned or

delegated powers must be capacitated to

appreciate this and to act accordingly. Making

decisions without providing adequate reasons

is tantamount to exercising power without

abiding by the legal and constitutional

constraints attendant upon the exercise of the

power. (See Minister of Social Development

and Others v Phoenix Cash and Carry PMB CC

2007 9 BCLR 982 (SCA).

In Kelly v Commissioner of An Garda

Siochana, Supreme Court 2012 IESC 59 par.

66 held that “In the present state of evolution of

our law, it is not easy to conceive of a decision-

maker being dispensed from giving an

explanation either of the decision or of the

decision-making process [own emphasis] at

some stage. The most obvious means of

achieving fairness is for reasons to accompany

the decision. However, it is not a matter of

complying with a formal rule: the underlying

objective is the attainment of fairness in the

process. If the process is fair, open and

transparent and the affected person has been

enabled to respond to the concerns of the

decision-maker, there may be situations where

the reasons for the decision are obvious and

that effective judicial review is not precluded.”

THE IMPACT OF THE LABOUR

RELATIONS AMENDMENT ACT 6

OF 2014 ON REVIEW OF

ARBITRATION AWARDS

The reviewing of arbitration awards in the

public service has become standard practices if

the decision is not favourable to the employer.

There appears to be a tendency, especially in

government departments to bring review

applications merely as a tactical ploy to

frustrate employees or delay compliance with

arbitration awards. “In his article

“The new Section 145(9) of the LRA –

Unique, But Welcome”, DW de Villiers, Dept

of Mercantile Law, UP)” stated that “it is

common practice here for employers to bring

reviews to prolong the legal battle and thereby

frustrating the employee‟s rightful claim. The

latter is denied the intended expedient relief

given by an award in the CCMA or a Bargaining

Council. Employers carry on long enough to

prolong the review with the aim to have the

award eventually prescribed, since they know

that many employees do not know that an

award containing a debt prescribes after three

years.”

In 2014 the President of the Republic of

South Africa assented to the Labour Relations

Amendment Act 6 of 2014 (“Amendment Act”).

The Amendment Act was published under

Notice 629 in Government Gazette 37921 on

18 August 2014, and became effective on 1

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January 2015. Among other things, this

Amendment Act has introduced a number of

important changes to the current Labour

Relations Act 66 of 1995 (the LRA).

Unequivocally, these changes have immediate

and costly consequences for employers with a

tendency to take CCMA/bargaining councils

award on review to the Labour Court in terms of

section 145 of the LRA.

Enforcement of arbitration of arbitration

awards (section 143 of the LRA)

Amendments to section 143 of the LRA

make provision for the enforcement of an

arbitration award issued by a commissioner

and certified by the CCMA Director, as if it

were an order of the Labour Court in respect

of which a writ of execution has been issued,

unless it is an advisory award. In other words,

the amendment removes the need for the

current practice in terms of which parties have

a writ issued by the Labour Court.

The amendment was confirmed by the

Labour Appeal Court in the case of Bheka

Management Services v Kekana and others

and in MBS Transport CC v CCMA and others.

In its judgment, the Labour Appeal Court (LAC)

took the view that “a certified award should not

only be assumed to be an order of the Labour

Court but it must also be assumed that a writ

has been issued in respect of that order” The

effect of the judgment of the LAC is that a

certified arbitration award may be enforced

without the need for a writ to be issued by any

court or the CCMA

As a result of the amendment introduced by

the Labour Relations Amendment Act, No 6 of

2014, review proceedings brought by

employers in respect of arbitration awards

handed down by, for example, the CCMA or

Bargaining Council, will no longer suspend the

enforcement of those arbitration awards; unless

the employer (applicant) furnishes security to

the satisfaction of the Labour Court. Unless the

Labour Court directs otherwise, security

furnished in respect of arbitration awards that

order reinstatement or re-employment, must be

equivalent to 24 months‟ remuneration and if

compensation is awarded. The security

furnished must be equivalent to the amount of

compensation awarded.

This amendment, as interpreted by the

Labour Court in the case of Free State

Gambling and Liquor Authority v Commission

for Conciliation Mediation and Arbitration &

Others (2015) 36 ILJ 2867, allows the Court to

decide whether security must be paid and

decide on the amount of security required.

The applicant in this case, a gambling and

liquor industries regulator, brought two urgent

applications seeking to stay the certification

and enforcement of two arbitration awards. The

applicant also sought an order absolving it from

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paying security; alternatively, relief declaring

the amendment unconstitutional.

In arriving at its decision, the court took into

account that the amendment was drafted to

speed up the finalisation of review applications

and to deter litigants that bring review

applications to delay compliance with

arbitration awards. The court held that its

interpretation was aligned with the Constitution.

The court held that where the applicant‟s

budget and financial management is governed

by Treasury Regulations and the Public

Finance Management Act, No 1 of 1999, as

was the case, the object of security is satisfied.

The application was therefore, dismissed.

To speed up the finalisation of review

applications, the amended s145 (5) of the LRA

requires that a person (applicant) who institutes

a review application must arrange for the

matter to be heard by the Labour Court within

six months of the application having been filed

at the Labour Court. However, the court has

been given the power to condone a failure to

comply with this provision on good cause

shown.

Rescission of awards or rulings (section

144 of the LRA)

Section 144 of the LRA has been amended

to confirm previous decisions of the Labour

Court in terms of which it was held that

arbitration awards or rulings can be rescinded if

good cause is shown.

In the case of Shoprite Checkers (Pty) Ltd v

CCMA & Others (2007) 28 ILJ 2246 (LAC);

[2007] 10 BLLR 917 (LAC), the Labour Appeal

Court held that: "section 144 must be

interpreted so as to also include good cause as

a ground for the rescission of a default

arbitration award. Accordingly, a Commissioner

may rescind the arbitration award under section

144 where a party shows good cause for its

default."

In Northern Province Local Government

Association v CCMA & others [2001] 5 BLLR

539 (LC) at 545, paragraph [16], it was stated

that: „An applicant for the rescission of a default

judgment must show good cause and prove

that he at no time denounced his defence, and

that he has a serious intention of proceeding

with the case. In order to show good cause an

applicant must give a reasonable explanation

for his default, his explanation must be made

bona fide and he must show that he has a bona

fide defence to the plaintiff’s claims.”

Prescription of the arbitration award in

terms of the Prescription Act, 1969 (Act No.

68 of 1969) and amended section 145(9) of

the LRA

In terms of section 10(1), (11)(d) and 12(1)

of the Prescription Act, an arbitration award

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which is regarded as a debt is extinguished by

prescription after a lapse of three years from

the date it was issued. As expressed by DW de

Villiers, “employers carry on long enough to

prolong the review with the aim to have the

award eventually prescribed, since they know

that many employees do not know that an

award containing a debt prescribes after three

years.”

However, under the amended section

145(9) of the LRA, the review application to set

aside an arbitration award in terms of this

section interrupts the running of prescription

period as provided in the Prescription Act, 1969

(Act No. 68 of 1969), in respect of an award.

Conclusion

The PSC„s advises that litigants in the

public service need to aim at ensuring strict

adherence to timeframes provided for

pleadings, in order to finalise review

applications speedily. With respect to reviews,

the PSC is of the view that it is imperative to

quickly dispose of matters as the Labour Court

will be less inclined to grant condonation for

failure to comply with these timelines. This

should especially assist employers who find

themselves at the mercy of dilatory ex-

employees who fail to timeously review

arbitration awards handed down against them.

The PSC further recommends that employers

should, however, similarly take care in

managing their own review applications. They

should take all necessary steps to progress the

matter to avoid censure for delays in the

proceedings. Employers who institute review

proceedings, and then unnecessarily delay the

matter, will face an increased risk of having the

review application dismissed.

GOOD STORY TO TELL

“My name is …. an employee of

the Department of …….based in

…... I had a problem with one of

my senior managers ….. and I

lodged a grievance, which was

never attended to by the

Department…. For five months

my life in the employ of

Department was a living hell. I

then turned to the Office of the

Public Service Commission for

help and it only took them two

days to resolve the problem. The

matter was reported to the

17

OPSC on Friday, the 19th of

February at about 11h45 at the

offices of the Commission at

ABSA Towers in Pretoria. The

grievance was allocated to…, and

I am writing this letter to express

my sincere gratitude for the

manner in which the official

handled the grievance. The fact

that the grievance was lodged

against a senior manager in the

Department …did not deter him

and from seeking a speedy

resolution of the grievance. He

studied the grievance together

with the supporting documents

and once he started he never

stopped. I must say that I was

very much encouraged to see

that there are still people who

are still passionate about their

work, in a country……..especially

in the public offices….The case

was finalised on the 26th of

February…With all parties

shaking hands to signify that

relationships have been restored

and that peace will prevail. All

the abuse, harassment and

victimization were ended,

with….formally apologising to me

and my wife. I therefore…would

like to request your good offices

to remove the grievance and….the

grievance be regarded as solved….

May God Bless OPSC”. 9

9 This is the quotation from the letter of the

aggrieved but used fictitious names to protect identity of the department and the aggrieved.