scholarly journals THE ROLE OF REASONABLENESS IN THE REVIEW OF LABOUR ARBITRATON AWARDS (PART 2)

Obiter ◽  
2021 ◽  
Vol 30 (3) ◽  
Author(s):  
Carli Botma ◽  
Adriaan van der Walt
Keyword(s):  
Case Law ◽  
Management Service ◽  
Appeal Court ◽  
Administrative Action ◽  
Previous Edition ◽  
Constitutional Right ◽  
To Come ◽  
Made In ◽  
Arbitration Award

This article is published in two parts. In the first part (published in the previous edition of Obiter) the general principles relating to administration review were established and the different forms of review considered. It was also established that the making of a CCMA arbitration award constitutes administrative action that is subject to the constitutional right to administrative justice; that justifiability is a constitutional requirement for just administrative action and that a failure to make a decision that is justifiable in terms of the reasons given may render an award reviewable in terms of section 145 of the LRA. This second part of the article will build on the conclusions of the first by focusing on setting out the key findings made by the CC in Sidumo v Rustenburg Platinum Mines Ltd (2007 12 BLLR 1097 (CC)) as regards the test for reviewing arbitration awards in terms of section 145 of the LRA. The purpose is to establish how reasonableness might best be understood and defined as well as to determine its implications for subsequent review proceedings. Case law that has sought to interpret and apply the principles established in Sidumo, will likewise be discussed in order to contextualise the place of reasonableness in the review of arbitration awards with a view better to understand its implications for the courts’ review function. Particular attention will be given to determining the applicability of the reasonableness standard to jurisdictional reviews. The principles laid down by the labour appeal court in Fidelity Cash Management Service v CCMA (2008 3 BLLR 197 (LAC)) will also be discussed with the objective of determining whether the court’s approach that an award is not reviewable because of flawed reasoning determining that the outcome is sustainable according to reasons identified in the record, and whether this finding is consistent with CC’s findings in Sidumo. It will also be considered whether the reasonableness standard as introduced by Sidumo will have any influence on the review of private arbitration awards in terms of section 33 of the Arbitration Act 42 of 19652 and whether parties can agree that an award would be reviewable on the same grounds and subject to the same test as a CCMA award. Finally, proposals will be made in respect of the interpretation and application of the reasonableness principle for the purpose of assisting in review proceedings to come.

scholarly journals THE ROLE OF REASONABLENESS IN THE REVIEW OF LABOUR ARBITRATON AWARDS (PART 1)

Obiter ◽  
2021 ◽  
Vol 30 (2) ◽  
Author(s):  
Carli Botma ◽  
Adriaan van der Walt
Keyword(s):  
Case Law ◽  
Constitutional Court ◽  
Labour Relations ◽  
Administrative Review ◽  
Per Se ◽  
Administrative Act ◽  
Constitutional Right ◽  
Arbitration Award ◽  
Administrative Justice

This article is published in two parts. In the first part (published in this edition of Obiter) the authors establish the general principles relating to administrative review and consider the different forms of review. Thereafter CCMA arbitration award reviews are considered. As is characteristic of special statutory reviews the Labour Relations Act, 1995 (“the LRA”) makes specific provision for the review of CCMA arbitration awards. The grounds of review are presented in such a manner that it has the effect of limiting the ambit. The administrative nature of CCMA arbitrations is considered. It is pointed out that the courts regard the CCMA as organ of state andthat the rendering of an arbitration award is considered as the commission of an administrative act that is subject to the constitutional imperatives of the administrative justice right of the Constitution. The authors also establish that the courts have not interpreted the restrictive scope of section 145 of the LRA as falling foul of the constitutional right to administrative justice. Rather, the courts have reasoned that, when reading section 145 in light of the constitutional right to administrative justice, the alleged misconduct, grossirregularity, exceeding of powers or impropriety as the case may be need only be measured against the constitutional imperatives of the administrative justice right in order to ensure constitutional consistency. So construed, an arbitration award would be reviewable if the reviewing court is able to conclude that the commissioner has committed misconduct or a gross irregularity or has exceeded his powers in terms of section 145(2) of the LRA because the decision is not justifiable in terms of the reasons given. The award would, however, not be reviewable only because it is perceived to be unjustifiable per se; the justifiability must be attributed to one or moreof the statutory grounds of review found in section 145(2) of the LRA. In Part 2 of the article the effect of the judgment of the Constitutional Court in Sidumo v Rustenburg Platinum Mines Ltd 2007 12 BLLR 1097 (CC) will be analysed as well as the application of the principles established in Sidumo in subsequent case law. Finally the reasonableness standard and private arbitration reviews will be considered. Part 2 will be published in the following edition of Obiter. 

scholarly journals La loi française du 11 juillet 1979 relative à la motivation des actes administratifs

2005 ◽  
Vol 21 (3-4) ◽  
pp. 961-984
Author(s):  
Georges Péquignot
Keyword(s):  
Prime Minister ◽  
Administrative Law ◽  
General Application ◽  
The Public ◽  
Administrative Action ◽  
Statutory Requirement ◽  
Unfavourable Effect ◽  
To Come ◽  
Made In

This paper summarizes the changes brought about in French administrative law by a law of 1979 imposing on administrative authorities a broad duty to give reasons for their decisions. Traditionally, the state of the law had been that, failing a specific statutory requirement, administrative authorities were under no obligation to provide reasons. This, however, had not prevented the Conseil d'État from reviewing administrative action — even of a clearly discretionary nature — for unlawfulness or impropriety of motives. The new law is aimed at improving communications between administrative authorities and the public. It reverses the former rule for three broad classes of decisions concerning individual cases : those having an unfavourable effect on rights and interests, those allowing for more favourable treatment than is provided under a rule of general application, and those made by social security and unemployment assistance agencies. Alleviation or disregard of the new rule is allowed in cases of emergency, where confidentiality or secrecy is required by law, or where, no decision being made in a prescribed time, a negative decision is deemed to have been rendered. Guidelines for the implementation of the new law have been issued by the Prime Minister to all Ministers; the latter have in turn issued more detailed instructions to decision-making officers in their departments. Further guidance will have to come from the administrative courts when they are called upon to review decisions for insufficiency or impropriety of reasons. Ultimately, however, achievement of the goal of improving the quality of intercourse between citizens and administrative authorities will require the development of a more open and trustful relationship between them.

scholarly journals Admissibility of evidence before the Inter-American Court of Human Rights

2017 ◽  
Vol 13 (2) ◽  
pp. 653-676
Author(s):  
Álvaro Paúl
Keyword(s):  
Human Rights ◽  
Case Law ◽  
American System ◽  
Relevant Case ◽  
Made In ◽  
Do So

Abstract The Inter-American Court of Human Rights performs a wide evidentiary analysis, which tends to be very flexible in its admission of evidence. This paper tries to decipher the extent, applicability, and content of the Court’s admissibility rules, both the norms established by the Court itself, and those that the Court is obliged to follow. In order to do so, this article will analyze the relevant case law of the Court and provide some examples. Within this analysis, this article refers in depth to some unclear rulings that the Court has made in relation to the exclusion of evidence obtained via coercion, some of which seem to clash with the central role of truth in the Inter-American system.

scholarly journals The Role of Microfinance Sector In Up Lifting The Performance Of Small Scale Industry And Empowering Women In Pakistan

2014 ◽  
Vol 8 (1) ◽  
pp. 177-184
Author(s):  
Rummana Zaheer ◽  
Bilal Hussain
Keyword(s):  
Small Scale ◽  
Economic Progress ◽  
Small Scale Industry ◽  
The World ◽  
Similar Strategy ◽  
The Government ◽  
To Come ◽  
Great Scope ◽  
Made In

An endeavor has been made in this paper to ascertain the reasons behind the bleak performance of the economy of Pakistan in spite of the fact that the country possesses cheaper labor as compared to many countries of the world. With a big portion of our labor force – comprising of women has been neglected even from unemployment alleviation planning. The data used in this study was available from December 2007 to September 2010. Looking up to neighboring China and its economic progress as the most populated country of the world brought its population in the economic fold, Pakistani government also needs to come up with some similar strategy but related to its own society norms. Pakistan could also bring a big part of its population by strengthening microfinance sector and subsequently small sector of the country. There is great scope in the microfinance industry in Pakistan provided that the government objectively patronizes the activities of the microfinance banks and institutions.

scholarly journals The Politics of Pulpit Religiosity in the Era of Covid-19 in Kenya

2021 ◽  
Vol 6 ◽  
Author(s):  
Susan M. Kilonzo ◽  
Bryson O. Omwalo
Keyword(s):  
Social Media ◽  
Religious Practices ◽  
Personal Experiences ◽  
To Come ◽  
Role Of Religion ◽  
Made In

This essay centres on the role of religion in the era of Covid-19. We juxtapose social media and religious practices in a way that challenges the conventional religion of the pulpit to deconstruct the myths and misconceptions around spirituality in the era of Covid-19. We show the transformation of worship from physical worship places, particularly churches, to virtual engagements through social media. Through observation, close relations’ accounts, personal experiences and media perspectives, we analyze the politics that surrounded religious observances in the first 7 months of Covid-19 pandemic in Kenya. We make a case that, discoveries made in these seven and other months to come, will most likely influenced the myths and misconceptions about religion and religious practices in the Country. From these accounts, we project a future that is likely to reap from the benefits of technology, and especially social media, which has revolutionized exchange of ideas, sermons, prayers and music. We challenge the very notion of pulpit religiosity, and the myths and misconceptions that religion cannot be without physical fellowships.

The AMA Guides in Pennsylvania “Post-Protz”: Act 111 and Case Law Update

2020 ◽  
Vol 25 (3) ◽  
pp. 12-19
Author(s):  
Justin D. Beck ◽  
Judge David B. Torrey
Keyword(s):  
Case Law ◽  
General Assembly ◽  
Disability Benefits ◽  
Permanent Disability ◽  
Sixth Edition ◽  
Legal Questions ◽  
The Supreme Court ◽  
Recent Edition ◽  
Impairment Ratings

Abstract Medical evaluators must understand the context for the impairment assessments they perform. This article exemplifies issues that arise based on the role of impairment ratings and what edition of the AMA Guides to the Impairment of Permanent Impairment (AMA Guides) is used. This discussion also raises interesting legal questions related to retroactivity, applicability of prior precedent, and delegation. On June 20, 2017, the Supreme Court of Pennsylvania handed down its decision, Protz v. WCAB (Derry Area Sch. Dist.), which disallows use of the “most recent edition” of the AMA Guides when determining partial disability entitlement under the Pennsylvania Workers’ Compensation Act. An attempted solution was passed by the Pennsylvania General Assembly and was signed into law Act 111 on October 24, 2018. Although it affirms that the AMA Guides, Sixth Edition, must be used for impairment ratings, the law reduces the threshold for total disability benefits from 50% to 35% impairment. This legislative adjustment benefited injured workers but sparked additional litigation about whether, when, and how the adjustment should be applied (excerpts from the laws and decisions discussed by the authors are included at the end of the article). In using impairment as a threshold for permanent disability benefits, evaluators must distinguish between impairment and disability and determine an appropriate threshold; they also must be aware of the compensation and adjudication process and of the jurisdictions in which they practice.

ASPECTS IN BUILDING A COMPANY WEB-SITE AND ITS ROLE FOR THE DEVELOPMENT OF BUSINESS

2018 ◽  
pp. 117-124
Author(s):  
Petar Halachev ◽  
Victoria Radeva ◽  
Albena Nikiforova ◽  
Miglena Veneva
Keyword(s):  
Life Cycle ◽  
Web Site ◽  
The Internet ◽  
A Company ◽  
The Web ◽  
Design Construction ◽  
Made In ◽  
Site Types

This report is dedicated to the role of the web site as an important tool for presenting business on the Internet. Classification of site types has been made in terms of their application in the business and the types of structures in their construction. The Models of the Life Cycle for designing business websites are analyzed and are outlined their strengths and weaknesses. The stages in the design, construction, commissioning, and maintenance of a business website are distinguished and the activities and requirements of each stage are specified.

Aboutness

2014 ◽  
Author(s):  
Stephen Yablo
Keyword(s):  
Subject Matter ◽  
Philosophy Of Language ◽  
Mental States ◽  
Library Science ◽  
Philosophical Methodology ◽  
Major Advance ◽  
Truth Conditions ◽  
Ways Of Being ◽  
Made In

Aboutness has been studied from any number of angles. Brentano made it the defining feature of the mental. Phenomenologists try to pin down the aboutness features of particular mental states. Materialists sometimes claim to have grounded aboutness in natural regularities. Attempts have even been made, in library science and information theory, to operationalize the notion. However, it has played no real role in philosophical semantics, which is surprising. This is the first book to examine through a philosophical lens the role of subject matter in meaning. A long-standing tradition sees meaning as truth conditions, to be specified by listing the scenarios in which a sentence is true. Nothing is said about the principle of selection—about what in a scenario gets it onto the list. Subject matter is the missing link here. A sentence is true because of how matters stand where its subject matter is concerned. This book maintains that this is not just a feature of subject matter, but its essence. One indicates what a sentence is about by mapping out logical space according to its changing ways of being true or false. The notion of content that results—directed content—is brought to bear on a range of philosophical topics, including ontology, verisimilitude, knowledge, loose talk, assertive content, and philosophical methodology. The book represents a major advance in semantics and the philosophy of language.

The Constitutional Principle of Accountability: A Study of Contemporary South African Case Law

2018 ◽  
Vol 33 (1) ◽  
Author(s):  
Chuks Okpaluba
Keyword(s):  
Judicial Review ◽  
Police Officers ◽  
Public Procurement ◽  
Case Law ◽  
The State ◽  
Constitutional Principle ◽  
Starting Point ◽  
The Law ◽  
Constitutional Right ◽  
The Many

‘Accountability’ is one of the democratic values entrenched in the Constitution of South Africa, 1996. It is a value recognised throughout the Constitution and imposed upon the law-making organs of state, the Executive, the Judiciary and all public functionaries. This constitutional imperative is given pride of place among the other founding values: equality before the law, the rule of law and the supremacy of the Constitution. This study therefore sets out to investigate how the courts have grappled with the interpretation and application of the principle of accountability, the starting point being the relationship between accountability and judicial review. Therefore, in the exercise of its judicial review power, a court may enquire whether the failure of a public functionary to comply with a constitutional duty of accountability renders the decision made illegal, irrational or unreasonable. One of the many facets of the principle of accountability upon which this article dwells is to ascertain how the courts have deployed that expression in making the state and its agencies liable for the delictual wrongs committed against an individual in vindication of a breach of the individual’s constitutional right in the course of performing a public duty. Here, accountability and breach of public duty; the liability of the state for detaining illegal immigrants contrary to the prescripts of the law; the vicarious liability of the state for the criminal acts of the police and other law-enforcement officers (as in police rape cases and misuse of official firearms by police officers), and the liability of the state for delictual conduct in the context of public procurement are discussed. Having carefully analysed the available case law, this article concludes that no public functionary can brush aside the duty of accountability wherever it is imposed without being in breach of a vital constitutional mandate. Further, it is the constitutional duty of the courts, when called upon, to declare such act or conduct an infringement of the Constitution.

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