CCMA ARBITRATION GUIDELINES: INTERPRETATION OF THE LAW

ORIGINS OF THE GUIDELINES  ISSUED IN TERMS OF SECTION 115(2)(g) OF THE LRA.  SECTION 138(6) IMPLORES ARBITRATORS TO TAKE INTO ACCOUNT THE CODE OF GOOD PRACTICE AND ANY GUIDELINES PUBLISHED BY THE CCMA.  THE PURPOSE IS TO PROMOTE CONSISTENT DECISION-MAKING IN ARBITRATION DEALING WITH DISMISSAL FOR MISCONDUCT.

INTERPRETATION OF THE LAW  THE INTERPRETATION OF THE LAW IS THE POLICY OF THE CCMA.  ARBITRATORS ARE THEREFORE OBLIGED TO INTERPRETE AND APPLY THE LRA AND OTHER LEGISLATION.  THIS SHOULD BE IN ACCORDANCE WITH JUDICIAL DECISIONS OF COURTS THAT ARE BINDING.

PRINCIPLE OF STARE DECISIS ARBITRATORS MUST FOLLOW THE INTERPRETATIONS PLACED UPON A PROVISION BY THE MOST RECENT DECISION OF THE HIGHEST COURT DEALING WITH THAT PROVISION. THIS IS KNOWN AS THE PRINCIPLES OF STARE DECISIS (PRINCIPLE OF PRECEDENCE) THIS WAS EMPHASISED IN THE DECISION OF LE ROUX V CCMA & OTHERS (2000) 9 LC.

…CONT  WALLIS AJ STATED THAT: “COMMISSIONERS ARE AS MUCH BOUND TO FOLLOW AND APPLY THE JUDGMENT OF THIS COURT (LC) AS THE MAGISTRATES’ COURTS ARE OBLIGED TO FOLLOW AND THE JUDGEMENTS OF THE HIGH COURT.”  THE THEN ACTING JUDGE STATED THAT THE ISSUE OF COMPENSATION HAD BEEN “DECISIVELY RESOLVED BY THE JUDGMENT OF THE LABOUR APPEAL COURT

…CONT JOHNSON & JOHNSON (PTY) LIMITED V CHEMICAL WORKERS INDUSTRIAL UNION (1999) 20 ILJ 89 (LAC)  THE COMMISSIONER WAS THEREFORE INCORRECT TO DISREGARD THE JUDGEMENT OF THE COURT SINCE “THE WHOLE STRUCTURE OF THE LRA PLACES THE LABOUR APPEAL COURT AT THE PINNACLE OF THE PYRAMID OF THE ADJUDICATIVE BODIES ESTABLISHED UNDER THE ACT.” 1.SEE ALSO CHIZUNZA V MTN (PTY) LTD &OTHERS (2008) 29 ILJ 2919 (LC) AND CAMPS BAY RATEPAYERS AND RESIDENTS ASSOCIATION AND ANNOTHER V HARRISON AND ANOTHER 2011 (4) SA 42 (CC)

1956 ACT V 1995 ACT  ARBITRATORS ARE EXPECTED TO BE CAREFUL WHEN CONSIDERING THE DECISIONS OF THE INDUSTRIAL COURT, LABOUR APPEAL COURTS AND OTHER COURTS INTERPRETING THE 1956 ACT.  SHOULD CONSIDER WHETHER THE PRE 1995 JURISPRUDENCE IS CONSISTENT WITH THE PRINCIPLES OF INTERPRETATION SET OUT IN SECTION 3 OF THE CURRENT LRA STATING: “ ANY PERSON APPLYING THIS ACT MUST INTERPRET ITS PROVISION –

….CONT a)TO GIVE EFFECT TO ITS PRIMARY OBJECTS b)IN COMPLIANCE WITH THE CONSTITUTION; AND c)IN COMPLIANCE WITH THE PUBLIC INTERNATIONAL LAW OBLIGATIONS OF THE REPUBLIC.

SECTION 33 OF THE CONSTITUTION SECTION 33 OF THE CONSTITUTION  ARBITRATORS MUST MAKE DECISIONS THAT ARE FAIR AND REASONABLE.  S33 OF THE CONSTITUTION STATES THAT EVERYONE HAS A RIGHT TO ADMINISTRATIVE ACTION THAT IS LAWFUL REASONABLE AND PROCEDURALLY FAIR.  THEREFORE, EVERY DECISION OF THE ARBITRATOR MUST HAVE THE FOLLOWING ELEMENTS:  IT MUST BE LAWFUL  IT MUST BE REASONABLE  IT MUST BE PROCEDURALLY FAIR