REVIEW VERSUS APPEAL: UNDERSTANDING LABOUR COURT REMEDIES
Written by Njabulo Thabethe
Labour disputes can be stressful and costly for employers, particularly when a disciplinary hearing, arbitration award or court judgment does not produce the expected outcome. However, an unfavourable decision does not automatically mean that the matter must be accepted, nor does it mean that the decision can simply be challenged through any available legal process.
South African labour law provides different remedies depending on the nature of the decision, the circumstances surrounding it and the legal grounds for challenging it. Among the most important are appeals, reviews, rescission applications and condonation applications.
For owners and managers of establishments in the Hairdressing, Cosmetology, Beauty and Skincare Industry, understanding these remedies is essential to protecting the interests of their establishments and avoiding unnecessary legal expenses.
Understanding the difference between a review and an appeal
A review and an appeal are two distinct legal remedies. Although both may be used to challenge an unfavourable decision, they serve different purposes.
An appeal generally challenges the correctness of a decision. The appeal body considers whether the decision was wrong in law or on the facts, within the grounds permitted for that appeal. In labour matters, an appeal against a final judgment or order of the Labour Court is generally pursued through the Labour Appeal Court, subject to the applicable requirements for leave to appeal.
A review, on the other hand, focuses on the lawfulness and fairness of the decision-making process and whether the decision is legally sustainable. It is not simply an opportunity to present the same evidence again because a party disagrees with the outcome.
Under section 145 of the Labour Relations Act 66 of 1995 (LRA), an arbitration award issued in proceedings under the auspices of the Commission may be reviewed where a recognised defect exists, including misconduct by the commissioner, a gross irregularity in the arbitration proceedings, the commissioner exceeding their powers, or an award that was improperly obtained.
For example, an employer who loses an unfair dismissal arbitration cannot succeed in a review merely by arguing that the commissioner should have believed the employer's witnesses rather than the employee. The employer must establish legally recognised grounds for review.
The distinction is important: an appeal questions whether the decision was correct, while a review examines whether the decision can stand in law.
Bargaining councils and the review process
Many employers in the Hairdressing, Cosmetology, Beauty and Skincare Industry interact with bargaining councils, including the National Bargaining Council for Hairdressing, Cosmetology, Beauty and Skincare Industry (HCSBC).
Bargaining councils may deal with disputes involving dismissals, unfair labour practices, collective agreements and other matters falling within their jurisdiction. Depending on the dispute, a matter may proceed through conciliation and, where appropriate, arbitration.
An arbitration award issued by a bargaining council is not ordinarily subject to an appeal simply because one party disagrees with the outcome. A party seeking to challenge the award may instead need to approach the Labour Court to review the award, provided there are legally sustainable grounds.
Where the award was issued in arbitration proceedings under the auspices of the Commission, section 145 of the LRA provides the statutory framework for review. Where the award was issued by a bargaining council, a party may ordinarily approach the Labour Court in terms of section 158(1)(g) of the LRA. The same broad review principles apply: the applicant must show that the decision is not one a reasonable decision-maker could have reached on the available evidence.
In practice, the review process involves preparing the necessary court application, identifying the alleged defects, obtaining and dealing with the arbitration record, and presenting legal arguments explaining why the award should be set aside.
Employers should preserve all relevant documents, including disciplinary records, notices, witness statements, attendance registers, correspondence and the arbitration record. These documents may be essential when assessing whether a review is justified.
It is equally important to understand that lodging a review application does not automatically suspend the enforcement of an arbitration award. Section 145(2) regulates the circumstances in which the operation of an award may be suspended, including the applicable security requirements. Employers should obtain legal advice before assuming that an award requiring reinstatement or payment can be ignored while review proceedings are pending.
Rescission applications: Correcting decisions made in absence or error
A rescission application is different from both a review and an appeal. It asks the decision-maker to set aside a decision or award in circumstances permitted by law.
Under section 144 of the LRA, an arbitration award or ruling may be rescinded or varied in specified circumstances. These include a decision erroneously sought or made in the absence of an affected party, an ambiguity or obvious error, a common mistake by the parties, or a decision made in a party's absence where good cause is shown.
The precise procedure may differ where the award was issued by a bargaining council rather than the Commission. Employers should confirm the correct forum and procedure before launching a rescission application.
Consider an employer who fails to attend a bargaining council arbitration because the hearing notice was sent to an incorrect email address. If a default award is issued against the employer, a rescission application may be appropriate, depending on the facts and applicable legal requirements.
However, absence alone does not guarantee rescission. The employer must identify the applicable legal basis and provide a credible explanation supported by relevant evidence.
Employers should also distinguish between rescission and review. Rescission may be the appropriate remedy where a decision was made in the employer's absence, and the legal requirements are met. A review may be necessary where the complaint concerns a defect in the arbitration proceedings or another recognised ground of review.
Choosing the wrong remedy can waste valuable time and may expose the employer to additional costs.
Condonation applications: Requesting permission for late filings
Labour law prescribes strict time limits for referring disputes and bringing certain applications. Employers sometimes miss these deadlines because of administrative oversights, internal communication failures or uncertainty about the correct procedure.
A condonation application asks the relevant body or court to excuse non-compliance with a prescribed time limit where the law permits it.
For example, section 145(1) of the LRA generally requires a review application to be brought within six weeks of service of the arbitration award. Under section 145(1A), the Labour Court may condone late filing on good cause shown.
When considering condonation, courts generally examine factors such as the length of the delay, the explanation for the delay, the prospects of success and the potential prejudice to the parties. These factors are considered together, rather than as an automatic checklist guaranteeing success.
An employer who discovers that a review application is late should act promptly, explain the delay fully and provide supporting evidence. Simply stating that the establishment was busy or that the responsible manager overlooked the deadline may be insufficient without a proper explanation of the circumstances.
Importantly, condonation does not automatically mean that the underlying application will succeed. It only addresses the late filing; the substantive merits must still be considered.
Practical steps employers should take
Employers can reduce the risks associated with labour litigation by adopting a proactive approach:
Record all deadlines: Immediately diarise the dates for referrals, rescission applications, reviews and other required filings.
Keep complete records: Maintain disciplinary documentation, correspondence, hearing notices and evidence of service.
Assess the correct remedy: Determine whether the circumstances call for rescission, review, condonation or another procedure before preparing an application.
Act without delay: Do not wait until enforcement proceedings begin before seeking advice about an unfavourable award.
Obtain professional assistance: Consult an experienced labour relations practitioner or legal representative where appropriate, particularly when proceedings involve the Labour Court.
In conclusion, review, appeal, rescission and condonation applications serve different purposes within South Africa's labour dispute resolution system. Understanding these distinctions enables employers to respond appropriately when a decision is unfavourable, a hearing has proceeded in their absence, or a deadline has been missed.
For employers in the Hairdressing, Cosmetology, Beauty and Skincare Industry, sound recordkeeping, prompt action and a clear understanding of the applicable procedures can make a significant difference to the outcome and cost of a dispute.
EOHCB encourages employers to seek guidance when faced with labour disputes rather than relying on assumptions or taking action without understanding the legal consequences. The correct remedy, pursued within the applicable time limits and on proper legal grounds, can help protect the establishment while supporting fair and lawful workplace practices.
