Delays in Review Proceedings

An application for the review of an arbitration award under Section 145 of the Labour Relations Act (LRA) 66 of 1995 was intended to be a swift remedy for an Applicant. Regrettably, this is not always the case and it is for this reason that Section 145(6) of the LRA must be highlighted. Section 145(6) states that, “Judgment in an application brought under subsection (1) must be handed down as soon as reasonably possible”. If review applications are to adhere to this rule, then all parties will have to ensure that the timelines provided for are followed. This article will examine the delays in the review application process while having specific regard to the retrieval of the record.

FACTS:

Our client, the Employee (Applicant) instituted a review application against an arbitration award handed down at the Bargaining Council. The Registrar had previously notified us that the record of the proceedings at the Bargaining Council was ready to be uplifted. On uplifting the record from the Labour Court, it became quickly apparent that there was no audio record of the arbitration proceedings included. Instead, we had received the contents of the Bargaining Council’s file.

We did not have an audio record of the proceedings and the Bargaining Council was not being forthcoming as to when we would receive the record. Notwithstanding same, the 60 day time period in which we have in order to transcribe the recording continued to run. At this juncture, our main priority was to ensure that the deadline imposed by the Practice Manual of the Labour Court (“Practice Manual”) did not lapse.

DELAYS CAUSED BY A PERSON OR BODY

In the circumstances, it is important to note that these timelines are imposed by the LRA, the Labour Court Rules (“the Rules”) and clause 11 of the Practice Manual. With respect to our client’s matter, the following time frames would be applicable:

  • On receipt of the application to review, the CCMA or Bargaining Council has 10 days in which to provide the Registrar with the record of proceedings and to notify the Applicant that this has been done;
  • If the body fails to comply with the directive or fails to apply for an extension to provide the record, any interested party may apply for an order compelling compliance.
  • On receipt of the record, the Registrar is to notify the Applicant that the record may be uplifted and that the Applicant has 7 days to do so.
  • The transcribed record must be filed within 60 days from the date on which the Applicant was advised by the Registrar that the record has been received.
  • If the Applicant fails to file a transcribed record within the 60 day period, the application is deemed to have been withdrawn, unless the Applicant has during that period requested the Respondent’s consent for an extension and consent has been given. If the consent has been refused, the Applicant may make an application to the Judge President in chambers for an extension.
  • If the record of the proceedings has been lost or if the record is of such poor quality, the Applicant may approach the Judge President for a direction as to the way forward in the review application.

HOW WE PROCEEDED

From the above, it is clear that our client would be severely prejudiced if we allowed the 60 day period to continue even though we did not obtain the full record. It was further clear that we had no assurance from the Bargaining Council involved that we would in fact receive the record soon or at all. It was with this in mind that we took the most cost-effective approach going forward. We wrote to the employer and requested that they agree to hold off the review in order for both parties to reach an amicable settlement. We received a response agreeing to our request. Despite the general urgency of review applications, this option has given both parties time to engage in meaningful negotiations regarding settlement alternatively it has given the Applicant time to retrieve the audio recording.

Leave a Comment