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has section 145 become ..... academic?

Reviewing CCMA (and bargaining council) arbitration awards:. has section 145 become ..... academic?. Appeal / Review Review in terms of s 145(2): ‘misconduct’ ‘gross irregularity’ ‘exceeded powers’. Carephone: arbitration = ‘administrative action’

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has section 145 become ..... academic?

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  1. Reviewing CCMA (and bargaining council) arbitration awards: has section 145 become ..... academic?

  2. Appeal / Review Review in terms of s 145(2): ‘misconduct’ ‘gross irregularity’ ‘exceeded powers’

  3. Carephone: arbitration = ‘administrative action’ award must be “justifiable in relation to the reasons given for it” (later: ‘rational’, ‘reasonable’) ‘unjustifiable’ = ultra vires

  4. Has the “extended” (constitutional) ground of review, (hereafter referred to as “unreasonableness”) superseded the specific grounds of review in s 145? (The short answer: Yes and no)

  5. More questions: What are the differences between grounds of review? (e.g.: “denied the applicant a fair hearing” – misconduct or gross irregularity?)

  6. Why does a defect fall into one category rather than another? (e.g.: failure to advise lay representative about proving documents = ‘misconduct’; but … about not challenging evidence = ‘gross irregularity’)

  7. Is the constitutional ground (“unreasonableness”) an additional ground of review? “permissible grounds of review are wider” than those in s 145(2) Test on review: decision must be shown to be “irrational” “result-based” test in addition to“process-related reasons”

  8. Has “unreasonableness” become a “catch-all” ground superseding the three specific grounds? Is s 145 merely a peg on which to hang a review application?

  9. Sidumo: “…s 145 is now suffused by the constitutional standard of reasonableness” (per Navsa AJ)

  10. Per Ngcobo J: 1. Applicants cannot rely directly on the Constitution (New Clicks, SANDU….)

  11. 2. “Side-lining” of s 145 and introducing “additional” ground of review was “one of the unintended consequences of Carephone”

  12. 3. Review application can only be brought on one or more of the three grounds in s 145(2)

  13. 4. All three grounds of review in s 145(2) are “suffused” with constitutional standard(s)

  14. 5. The Labour Court and LAC must “give meaning and content to each of these grounds” in light of the Constitution

  15. Party alleging a defect must show which defect is constituted by the facts (Guidelines: “misconduct” = impropriety “failure to apply mind” = gross irregularity)

  16. This means: not alleging ‘unreasonableness’ as ground of review but using it as standard (along with others) in deciding whether a ground of review (as alleged) has been established

  17. Does this blur the distinction between “result-based” and “process-related” review? Unpack the distinction: Every review is “result-based” Every review is “process-related” Constitutional standards suffuse result as well as process

  18. But practical distinction remains: Application may fail on “result” but succeed on “process” (i.e., where “result may have been different”)

  19. Conclusion: Constitutional test does not remove difference between “review” and “appeal” S 145, interpreted in accordance with the Constitution, has not become academic

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