n South African Law Journal - Circumventing review - when is a question jurisdictional?




The grounds for review of CCMA arbitration awards were intentionally cast in narrow terms. These grounds have since been extended to incorporate the constitutional standard of reasonableness. Consistent with the limited nature of s 145 of the Labour Relations Act 66 of 1995, the reasonableness standard is a deferential one, precluding intrusive scrutiny; it is notably distinct from correctness review. Whereas substantive and procedural defects are generally reviewable for want of reasonableness, true questions of jurisdiction remain subject to the standard of correctness. As a result, by framing defects as questions of jurisdiction, the correctness standard may be applied, and reasonableness review avoided. The question whether a dismissal has occurred arises frequently during CCMA unfair dismissal proceedings and has been defined by the Labour Appeal Court as jurisdictional in nature. This article challenges the legitimacy of the Labour Appeal Court's approach, arguing that it is unconvincing for three reasons. First, it is premised upon a misunderstanding of the meaning of jurisdiction. Secondly, it relies on an incorrect interpretation of the Labour Relations Act. Thirdly, it has the potential to scupper the expeditiousness with which labour disputes were intended to be resolved. Given these difficulties, the author submits that the Labour Appeal Court's definition of dismissal determinations as jurisdictional issues requires urgent revision.


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