Are CCMA arbitration awards enforceable?

Editor: The Courts have ruled CCMA arbitration awards are enforceable. Given the uncertain nature of arbitrations, we would really encourage employers to improve their internal dismissal process and manager training to reduce the likelihood of their appearing before the CCMA.

The amended section 143 of the Labour Relations Act that came into operation at the beginning of 2015 reads as follows:

1. An arbitration award issued by a commissioner is final and binding and it may be enforced as it was van order of the Labour Court in respect of which a writ has been issued, unless it is an advisory award.
2. …
3. An arbitration award may only be enforced in terms of section (1) if the director has certified that the arbitration award is an award contemplated in subsection (1).

Court Interpretation

The interpretation of section 143(1) and (3) came under scrutiny in MBS Transport CC V CCMA and Others (Case no J1807/15 – Labour Court), and CCMA v MBS Transport CC and Others (Case JI807/15- Labour Appeal Court).

Dustin Julius (the employee) approached the CCMA to have his award enforced in terms of section 143. Once the award was certified the employee delivered same to the relevant sheriff to execute on. The employer approached the Labour Court for an order to stay the enforcement of the award pending the review of the award. The Court made the following order: “It is declared that the CCMA does not have jurisdiction to issue writs of execution in respect of the arbitration awards issued by it. Having examined section 143, and taking into consideration that the CCMA was not a court of law; the court found that the CCMA was not assigned the statutory power to issue writs.

The CCMA appealed the finding at the Labour Appeal Court (LAC). The LAC examined the history and context of section 143 and came to the following conclusion (delivered on 28 June 2016):

1. In the original enactment of section 143 an arbitration award could only be enforced by an application in terms of section 158 to the Labour Court.
2. This proved largely ineffective due to both time and cost factors.
3. The 2002 amendment of section 143 provided the opportunity to issue a writ at the Registrar of the Labour Court on the strength of the certified award by the CCMA.
4. The procedure still required the employee to approach the Labour Court.
5. The proper interpretation of the further amendment of section 143 in 2014, that came into operation at the beginning of 2015, provided that, once an award has been certified, it could be presented to the sheriff for execution. The LAC found that the words “as it was an order of the Labour Court” in section 143(1) created a fiction that the CCMA is at liberty to issue a writ, despite the fact that the CCMA is not a court of law.
6. The LAC held that the legislature intended to make it “easier, inexpensive, effective and accessible for a person to enforce a certified arbitration award”.

For these reasons the LAC set aside the Labour Court’s finding.

What does this mean in practice?

Any arbitration can lead to unusual results, which can now be enforced by the CCMA. It would be advisable to avoid this situation by making sure you manage your dismissal process to reduce the likelihood of being subject to the CCMA. Line managers should be trained to conduct proper pre-investigations. It might also be a good idea to make use of external specialists to chair formal disciplinary hearings of a complex nature.