From Sidumo to Dunsmuir the test for review of CCMA arbitration awards

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dc.contributor.advisorRycroft, Alanen_ZA
dc.contributor.authorFergus, Emmaen_ZA
dc.date.accessioned2014-07-30T18:12:55Z
dc.date.available2014-07-30T18:12:55Z
dc.date.issued2013en_ZA
dc.descriptionIncludes abstract.
dc.descriptionIncludes bibliographical references.
dc.description.abstractThis thesis seeks to identify the test for judicial review of arbitration awards issued by the Commission for Conciliation, Mediation and Arbitration ('CCMA'). Currently, that test is set out in section 145 of the Labour Relations Act 66 of 1995 ('LRA'), read with the Constitutional Court's decision in Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] 12 BLLR 1097 (CC). In terms of Sidumo, section 145 of the LRA has been suffused by the standard of reasonableness, consistently with the right to just administrative action found in section 33 of the Constitution of the Republic of South Africa, 1996 ('the Constitution'). In search of a clear formulation of the test, an extensive examination of South African case law on the subject is undertaken. Thereafter, relevant principles of judicial review in South Africa in the administrative sphere generally are considered. Finally, an assessment of Canadian case law and commentary in this field is conducted. The conclusion to this thesis proposes a revised test for review of CCMA awards. The principal research findings begin by recognising the significance of efficiency, accessibility, flexibility and informality to ensuring fair and efficacious labour dispute resolution. The implication of this is that the test for review of CCMA awards should not be too exacting. Still, section 33 of the Constitution cannot be ignored and a broader ambit of review may therefore be necessary in certain instances. In fact, to maintain legal certainty, intrusive review may sometimes be crucial. These factors must be balanced when formulating a reliable and practical approach to review of CCMA awards. A key finding of this thesis is that – ostensibly due to the complexity of doing so – the Labour Courts have struggled to apply the current test for review consistently, fairly or predictably.en_ZA
dc.identifier.apacitationFergus, E. (2013). <i>From Sidumo to Dunsmuir the test for review of CCMA arbitration awards</i>. (Thesis). University of Cape Town ,Faculty of Law ,Department of Commercial Law. Retrieved from http://hdl.handle.net/11427/4607en_ZA
dc.identifier.chicagocitationFergus, Emma. <i>"From Sidumo to Dunsmuir the test for review of CCMA arbitration awards."</i> Thesis., University of Cape Town ,Faculty of Law ,Department of Commercial Law, 2013. http://hdl.handle.net/11427/4607en_ZA
dc.identifier.citationFergus, E. 2013. From Sidumo to Dunsmuir the test for review of CCMA arbitration awards. University of Cape Town.en_ZA
dc.identifier.ris TY - Thesis / Dissertation AU - Fergus, Emma AB - This thesis seeks to identify the test for judicial review of arbitration awards issued by the Commission for Conciliation, Mediation and Arbitration ('CCMA'). Currently, that test is set out in section 145 of the Labour Relations Act 66 of 1995 ('LRA'), read with the Constitutional Court's decision in Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] 12 BLLR 1097 (CC). In terms of Sidumo, section 145 of the LRA has been suffused by the standard of reasonableness, consistently with the right to just administrative action found in section 33 of the Constitution of the Republic of South Africa, 1996 ('the Constitution'). In search of a clear formulation of the test, an extensive examination of South African case law on the subject is undertaken. Thereafter, relevant principles of judicial review in South Africa in the administrative sphere generally are considered. Finally, an assessment of Canadian case law and commentary in this field is conducted. The conclusion to this thesis proposes a revised test for review of CCMA awards. The principal research findings begin by recognising the significance of efficiency, accessibility, flexibility and informality to ensuring fair and efficacious labour dispute resolution. The implication of this is that the test for review of CCMA awards should not be too exacting. Still, section 33 of the Constitution cannot be ignored and a broader ambit of review may therefore be necessary in certain instances. In fact, to maintain legal certainty, intrusive review may sometimes be crucial. These factors must be balanced when formulating a reliable and practical approach to review of CCMA awards. A key finding of this thesis is that – ostensibly due to the complexity of doing so – the Labour Courts have struggled to apply the current test for review consistently, fairly or predictably. DA - 2013 DB - OpenUCT DP - University of Cape Town LK - https://open.uct.ac.za PB - University of Cape Town PY - 2013 T1 - From Sidumo to Dunsmuir the test for review of CCMA arbitration awards TI - From Sidumo to Dunsmuir the test for review of CCMA arbitration awards UR - http://hdl.handle.net/11427/4607 ER - en_ZA
dc.identifier.urihttp://hdl.handle.net/11427/4607
dc.identifier.vancouvercitationFergus E. From Sidumo to Dunsmuir the test for review of CCMA arbitration awards. [Thesis]. University of Cape Town ,Faculty of Law ,Department of Commercial Law, 2013 [cited yyyy month dd]. Available from: http://hdl.handle.net/11427/4607en_ZA
dc.language.isoengen_ZA
dc.publisher.departmentDepartment of Commercial Lawen_ZA
dc.publisher.facultyFaculty of Lawen_ZA
dc.publisher.institutionUniversity of Cape Town
dc.subject.otherCommercial Lawen_ZA
dc.titleFrom Sidumo to Dunsmuir the test for review of CCMA arbitration awardsen_ZA
dc.typeDoctoral Thesis
dc.type.qualificationlevelDoctoral
dc.type.qualificationnamePhDen_ZA
uct.type.filetypeText
uct.type.filetypeImage
uct.type.publicationResearchen_ZA
uct.type.resourceThesisen_ZA
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