INTRODUCTION

The Commission for Conciliation, Mediation and Arbitration (“CCMA”) is a central institution for the resolution of labour disputes, established in terms of the Labour Relations Act 66 of 1995 (“LRA”). If a party is dissatisfied with a ruling or award issued by the CCMA, such party may seek to challenge that decision before the Labour Court. A question that frequently arises in practice is whether an interim ruling made by a CCMA commissioner may be taken on review before the dispute has been brought to finality. This article answers this question with reference to the applicable provisions under the LRA and the Constitutional Court’s decision in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) BCLR 158 (CC).

DISTINGUISHING BETWEEN CCMA RULINGS AND ARBITRATION AWARDS

A ruling is an interlocutory decision made by a CCMA commissioner during conciliation or arbitration proceedings. It does not constitute a final determination of the dispute but rather addresses procedural or jurisdictional issues that arise during proceedings. Examples include rulings relating to the admissibility of evidence, applications for condonation of late referrals, the CCMA’s jurisdiction to determine a dispute, and requests for the postponement of proceedings. An award, by contrast, represents the commissioner’s final and binding resolution of the substantive dispute. Section 143(1) of the LRA provides that an arbitration award is final and binding and may be enforced as though it were an order of the Labour Court. This distinction is crucial because the LRA treats the review of awards and the review of interim rulings differently, as discussed below.

IS A CCMA AWARD APPEALABLE?

There is no appeal against a CCMA arbitration award. In the constitutional court case of Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ 2405 (CC), the Court endorsed the reasoning adopted in County Fair Foods (Pty) Ltd v CCMA and Others. In County Fair, Acting Judge President Ngcobo emphasised the finality of CCMA awards, stating that:

“[C]ommissioners must approach their functions with caution. They must bear in mind that their awards are final – there is no appeal against their awards.”

The court in Sidumo affirmed this position, reinforcing the principle that CCMA awards are intended to be final and binding. The CCMA is a dispute resolution forum and not a court of law. As a result, a CCMA ruling may not be appealed and is intended to be final.

REVIEW OF CCMA ARBITRATION AWARDS UNDER SECTION 145 OF THE LRA

While CCMA awards are excluded from the appeals process, section 145 of the LRA makes provision for CCMA awards to be taken on review in the Labour Court. Section 145(1) provides that any party to a dispute who alleges a defect in any arbitration proceedings under the auspices of the Commission may apply to the Labour Court for an order setting aside the arbitration award. A defect, as defined in section 145(2), exists where the commissioner committed misconduct in relation to the duties of the commissioner as an arbitrator, committed a gross irregularity in the conduct of the arbitration proceedings, or exceeded the commissioner’s powers, or where the arbitration award was improperly obtained.

In terms of section 145(1), a party must bring such review application within six weeks of the date that the award was served on the applicant. However, if the alleged defect involves the commission of an offence referred to in Part 1 to 4, or section 17, 20 or 21 (in so far as it relates to those offences) of Chapter 2 of the Prevention and Combating of Corrupt Activities Act, 2004, the application must be brought within six weeks of the date that the applicant discovers the offence.

CAN AN INTERIM RULING BE TAKEN ON REVIEW BEFORE THE DISPUTE IS FINALLY DETERMINED?

Section 158(1B) of the LRA, inserted by the Labour Relations Amendment Act 6 of 2014, provides as follows:

“The Labour Court may not review any decision or ruling made during conciliation or arbitration proceedings conducted under the auspices of the Commission or any bargaining council in terms of the provisions of this Act before the issue in dispute has been finally determined by the Commission or the bargaining council, as the case may be, except if the Labour Court is of the opinion that it is just and equitable to review the decision or ruling made before the issue in dispute has been finally determined.”

Interlocutory rulings are generally not susceptible to review before the underlying dispute has been finally determined. This principle is grounded in the need to avoid fragmented litigation and unnecessary interruptions to arbitration proceedings. Allowing parties to challenge interim decisions as they arise would delay the final resolution of disputes and frustrate the CCMA’s objective of providing a speedy, efficient, and cost-effective dispute resolution process.

However, section 158(1B) creates an important exception: the Labour Court retains a discretion to review an interim ruling before the matter is finally determined where it is of the opinion that it is just and equitable to do so.

Where a review is entertained, the applicable test is one of reasonableness. In Sidumo, with reference to Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others 2004 (7) BCLR 687 (CC), the Court held at paragraph 110 that the enquiry is whether:

“Is the decision reached by the commissioner one that a reasonable decision-maker could not reach?”

Importantly, the review test is not concerned with whether the commissioner’s decision was correct, but whether it falls within a band of decisions that a reasonable decision-maker could reach.

In addition, section 158(1)(g) of the LRA provides that the Labour Court may, subject to section 145, review the performance or purported performance of any function provided for in the LRA on any grounds that are permissible in law. The general powers of review under section 158(1)(g) are therefore subject to the specific provisions of section 145 in respect of arbitration awards. However, in relation to interim rulings, the additional constraint of section 158(1B) applies, requiring that the dispute be finally determined before review, unless the just and equitable exception is satisfied.

CONCLUSION

The LRA does not confer a right of appeal against CCMA awards or rulings. While CCMA awards may be challenged on review under section 145, interim rulings are generally not reviewable until the dispute has been finally determined. The Labour Court may, however, permit an earlier review where it considers it just and equitable to do so. Accordingly, a party seeking to challenge an interim CCMA ruling before the conclusion of the arbitration must demonstrate exceptional circumstances warranting the Court’s intervention.

Please note: this article is for general public information and use. It is not to be considered or construed as legal advice. Each matter must be dealt with on a case-by-case basis and you should consult an attorney before taking any action contemplated herein.