Delays caused by the applicant in review proceedings

There are various instances whereby the Applicant, generally the Employer, delays review applications in an attempt to frustrate the Respondent. The Labour Appeal Court (LAC) in Macsteel Trading Wadeville v Francois van der Nerwe and Others recently examined the undue delay in review applications.

In this matter, NUMSA instituted proceedings to review an arbitration award. They had only filed the complete record approximately 19 months after it had been transcribed. NUMSA did not provide an explanation for the delay, nor did it seek condonation from the Labour Court as is required. Further, the review application was heard six years after the application had been instituted.

 

The LAC in this matter ultimately decided that the Labour Court had erred by
proceeding to deal with the merits of the review application while failing to deal with
the issue of undue delay. The Labour Court declined to deal with the undue delay in
prosecuting the review application on the basis that Macsteel had not brought an
application to dismiss the review, in terms of Rule 11 of the Rules.
In their ruling, the LAC emphasized that one of the main objectives of the LRA is to
promote effective and speedy resolutions to labour disputes. In this regard, the LAC
quoted the Constitutional Court’s decision in Toyota SA Motors (Pty) Ltd v
Commissioner for Conciliation, Mediation and Arbitration and Others, which
stated the following:

‘Any delay in the resolution of labour disputes undermines the primary object
of the LRA. It is detrimental not only to the workers who may be without a
source of income pending the resolution of the dispute but ultimately, also to
the employer who may have to reinstate workers after many years.’

The LAC went on to state that clause 11 of the Practice Manual was adopted in
order to give effect to the requirement of expedience in the LRA. Clause 11 of the
Practice Manual provides for the following:

  • The record must be filed within sixty (60) days from the date in which the
    Applicant was advised by the Registrar that the record has been received.
  • Where the Applicant fails to file a record within the time period, the
    application is deemed to have been withdrawn, unless the Applicant has
    during that period requested the Respondent’s consent for an extension of
    time 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 of time.
    The LAC reiterated the significance of the Practice Manual and the importance of it
    in giving effect to the LRA. It went on to state that even though the Practice Manual
    remains binding on the Labour Court, the Labour Court does have a residual
    discretion in interpreting the provisions, depending on the facts and circumstances of
    each case.

The LAC held that the Labour Court had no jurisdiction to determine the review
application based on the following facts:

  • The file had been archived as the review application was not set down for
    hearing within 12 months of the application being brought, as per clause
    11.2.7 of the Practice Manual. Thus, the review application was to be
    regarded as lapsed.
  • NUMSA filed the record approximately 19 months after instituting the
    application.
  • The application was set down for hearing six years after the application was
    instituted.
  • NUMSA neglected to seek condonation for the delay or apply for the
    reinstatement of the review.

The LAC held that in light of the aforementioned factors, the Labour Court was
obliged to strike the application from the roll on the grounds of lack of jurisdiction.
Alternatively, the LAC stated that Macsteel should have been given an opportunity to
bring a Rule 11 application before considering the merits of the matter. Accordingly,
the LAC upheld the appeal and set aside the order of the Labour Court.

CONCLUSION

In light of the aforesaid, it is apparent that despite the urgent nature of a review
application, it is common for delays in the proceedings, which is in contravention of
the strict time frames imposed by the LRA, the Labour Court Rules, and the Practice
Manual. It is in these circumstances in particular, that parties are to ensure that there
is compliance with the LRA, the Rules and the Practice Manual. It is also clear from
the above case that a failure to adhere to these time periods could result in your
review application being dismissed, irrespective of the merits of your claim.

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