Arbitrator’s failure to deliver Award within 14 days.

Under Section 138(7)(a) of the Labour Relations Act, an arbitrator is legally obliged to issue an award within 14 days of the end of a hearing . However, in some instances it may happen that an arbitrator fails to deliver within the 14 day period, or to deliver the award at all.

Even though this may not necessarily be a frequent matter, but how does a party to the proceedings deal with such a matter? Does PAJA apply? Can one file a Section 158 application to the Labour Court to address the matter?

In GPSSBC vs arbitrator Franklin Ngcaba (Oct 2021), the Labour Court endeavoured to address this very issue when the arbitrator failed to deliver two awards, which he presided over under the jurisdiction of the Bargaining Council. In this matter, the two awards should have been delivered by 10 July 2019 and 17 July 2017, respectively, which the arbitrator failed to do. After numerous requests by the Council and efforts to compel the arbitrator to deliver the awards, as well as asking the CCMA to intervene, the awards was still not forthcoming. The Council approached the Labour Court to order the respondent to issue and deliver the awards in both matters.

 The Labour Court reiterated that the court exercises a supervisory function over statutory arbitration proceedings, which are a form of administrative action. The arbitrator is legally obliged by Section 138 (7)(a) of the Labour Relations Act to issue an Award within 14 days.

The court stated:

“ Section 158(1)(g) of the LRA, provides that: “… subject to section 145, review the performance or purported performance of any function provided for in this Act on any grounds that are permissible in law.”

 And

 “Section 6 [3] of the Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’) specifically provides that where an administrator is required to take a decision within a particular time, the failure to do so can be remedied by the court in the exercise of its review powers relating to an unreasonable delay in taking the decision. Section 8 [2] of the same Act provides that in such review proceedings a court may grant an order that is just and equitable including orders directing the taking of a decision.”

 The court found that the issuing of an Award by an arbitrator under Section 138 (7)(a) of the Labour Relations Act concerns the performance of a function under the LRA and the failure to perform that function may be reviewed and remedied under Section 6 (3) read with Section 8 (2) of PAJA.

The court ruled that the arbitrator was in breach of his obligation under Section 138 (7)(a) of the LRA and gave him 30 days to comply. In addition, as the respondent left the applicant no choice, but to bring this application, the court also gave a cost order against the arbitrator.

What we learn from this case is that arbitration proceedings are indeed considered administrative action and that arbitrators must adhere to the legislative timelines provided by the LRA in the delivery of arbitration Awards. Failure to do so may compel a party of interest to find recourse under Section 158 of the LRA, remedied under Section 6(3) and Section 8(2) of PAJA.

It is advisable for employers to seek professional advise. Tobie Nel is the Managing Director for Effectus Harmony (Pty) Ltd and has over 15 years’ experience in Labour Law. You can contact him, by phone: 0824479512, by email: tobie@effectusharmony.co.za

visit: www.effectusharmony.co.za