REVIEWS: How do you assess the odds of success?
It’s tough to lose a case in arbitration – especially if you were convinced you’d win. You’re convinced the arbitrator got it wrong and you’re thinking about taking it on review to the Labour Court. If you do, you’ll be in for the long haul – about two years, six figure legal costs and no guarantee you’ll win this time round. So what are your odds of success? How wrong does the arbitrator have to be in the eyes of the Labour Court before it will overturn the award?
The test for review
The Constitutional Court crystalized the test for review in the Sidumo case. It was expressed as a question which the Labour court must ask when deciding whether to overrule an arbitrator’s decision.
“Is the commissioner’s decision one that a reasonable decision-maker could not reach?”
The Labour Court has applied this test consistently in subsequent reviews. It’s used different language to refine the thinking on how the test should be applied from case to case. A useful example is to consider that “reasonableness” indicates a range of reasonable decisions.
The decision will not be reviewable if it falls within the range of decisions which reasonable people could come to.
This means that a court should not interfere with a decision if it was ‘reasonable’ – even if it doesn’t agree with the arbitrator’s decision.
What would be an unreasonable decision?
The Labour Appeal Court has said it would consider a decision to be unreasonable if it was –
- unsupported by any evidence;
- based on speculation by the commissioner;
- entirely disconnected from the evidence;
- supported by evidence that is insufficiently reasonable to justify the decision; or
- made in ignorance of evidence that was not contradicted.
Assessing the odds
The Labour Court has now formulated a novel and useful way to assess the odds of success in a review. The case concerned gross misconduct relating to an employee who copied tender documents in suspicious circumstances. The Labour Court found there was “clear and convincing” circumstantial evidence to prove that the employee had acted with dishonest purposes.
The judgment noted that SA law has two standards of proof –
- “balance of probabilities” (civil cases) – equating to 51% probability; and
- “beyond reasonable doubt”(criminal cases) – equating to a 90% probability.
The court in Moses Ketane referred with approval to a third standard used in the USA –
- The “clear and convincing standard” – equating to a 70-75% probability.
The judgment expressed a preference to equate this to a 70% probability, being the mid-point between 50% and 90%.
TIP: The court is unlikely to set factual findings aside on review unless they are clearly wrong. And a clearly wrong factual finding on the formulation in this case means the probabilities should fall within the ‘clear and convincing’ standard of proof…about a 70% probability. The odds of success in a review would be much better if the prospects are assessed using this standard of proof.
 Source: Worklaw Newsletter June 2018
Labour Lawyer & Mediator