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REVIEWS: How do you assess the odds of success?

It’s tough to lose a case in arbitration – especially if you were convinced you’d win. You’re convinced the arbitrator got it wrong and you’re thinking about taking it on review to the Labour Court. If you do, you’ll be in for the long haul – about two years, six figure legal costs and no guarantee you’ll win this time round. So what are your odds of success? How wrong does the arbitrator have to be in the eyes of the Labour Court before it will overturn the award?[1]

The test for review

The Constitutional Court crystalized the test for review in the Sidumo case[2]. It was expressed as a question which the Labour court must ask when deciding whether to overrule an arbitrator’s decision.

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

The Labour Court has applied this test consistently in subsequent reviews. It’s used different language to refine the thinking on how the test should be applied from case to case. A useful example is to consider that “reasonableness” indicates a range of reasonable decisions.

The decision will not be reviewable if it falls within the range of decisions which reasonable people could come to.

This means that a court should not interfere with a decision if it was ‘reasonable’ – even if it doesn’t agree with the arbitrator’s decision.

What would be an unreasonable decision?

The Labour Appeal Court[3] has said it would consider a decision to be unreasonable if it was –

  • unsupported by any evidence;
  • based on speculation by the commissioner;
  • entirely disconnected from the evidence;
  • supported by evidence that is insufficiently reasonable to justify the decision; or
  • made in ignorance of evidence that was not contradicted.

Assessing the odds

The Labour Court[4] has now formulated a novel and useful way to assess the odds of success in a review. The case concerned gross misconduct relating to copying tender documents in suspicious circumstances. The Labour Court found there was “clear and convincing” circumstantial evidence to prove that the employee had acted with dishonest purposes.

The judgment noted that SA law has two standards of proof –

  • “balance of probabilities” (civil cases) – equating to 51% probability; and
  • “beyond reasonable doubt”(criminal cases) equating to a 90% probability.

The court in Moses Ketane referred with approval to a third standard used in the USA

    • ‘clear and convincing standard’  between these – equating to a 70-75% probability.

The judgment expressed a preference to equate this to a 70% probability, being the mid-point between 50% and 90%.

TIP: The court is unlikely to set factual findings aside on review unless they are clearly wrong. And a clearly wrong factual finding on the formulation, in this case, means the probabilities should fall within the ‘clear and convincing’ standard of proof…about a 70% probability. The odds of success in a review would be much better if the prospects are assessed using this standard of proof.   

Patrick Deale
Labour Lawyer & Mediator
Tel:0833758771
Email:  
patrick@deale.co.za

[1] Source: Worklaw Newsletter June 2018
[2] Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (Case CCT 85/06 Decided on 05 October 2007)
[3] Bestel v Astral Operations & others (LAC Case JA 37/08 Date of Judgment: 16 September 2010)
[4] Moses Kotane Local Municipality v Mokonyama N.O. and Another

 

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Source: Deale Attorneys

Patrick Deale
Patrick Deale
Patrick has worked in law and alternative dispute resolution for 25 years in a wide range of industries and sectors. As a senior legal executive for a listed company, he gained first-hand experience of the issues business managers and employees deal with day-to-day.

Patrick co-founded Tokiso Dispute Settlement (Pty) Ltd in 2000, the largest private dispute resolution agency in the country, where he was full-time CEO for six years. He is a highly skilled and experienced labour negotiator, mediator, arbitrator and facilitator. He is a commercial mediator, coach and assessor, accredited by CEDA (UK). He also serves as Acting Judge of the Labour Court.

He is the co-author of the Labour Relations Handbook, published by Juta, and has been a regular host of the Labour Line on Talk Radio 702. Patrick established Deale Attorneys to focus on the opportunity to improve and build successful South African business relationships, in partnership with business clients.


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