Review Applications – The long wait

Our Client was employed by a very large and well known conglomerate in December 2007 and was dismissed for alleged misconduct in September 2015. The Company instituted disciplinary proceedings against our Client on 12 June 2015 wherein they charged her for “Refusal to obey lawful instruction and insubordination committed on 8 June 2015”. They had charged our Client within a reasonable time frame. After being dismissed in absentia, our Client appealed the outcome. She was unsuccessful yet felt adamant about her innocence. Our Client, with the help of her Union referred the dispute to the CCMA.

Up until that point, our Firm was not instructed. We were instructed at the point of Conciliation to assist. We attended at the Conciliation with Client on 13 October 2016 and we were issued a Certificate of Non-Resolution by the CCMA immediately as the Employer never appeared at the CCMA at all that day to try and settle the matter. The Client’s Union referred the matter to Arbitration upon request by the Client. She thereafter chose to have her Union represent her at the Arbitration. The Arbitration was held on 9 February 2016 as well as 2 and 3 March 2016 and was in our Client’s favour. Our Firm was only instructed again after the Client had been served an Application for Review by the Employer in the Labour Court. Service was effected on or about 13 May 2016. Initially Client made use of the Union’s Attorneys who drafted an Answering Affidavit in their name, not the Client’s, as she was only mentioned as the Third Respondent therein. The Employer was the Applicant. As there were problems with the Affidavit prepared by the Unio, we were appointed as Attorneys of Record. Our Client felt it was vital to do so, so as to protect her interests as it had become evident to her that the Union was not acting in her best interests. We firstly had the Union’s attorneys withdraw as her legal representative and we thereafter were able to go on record as her new attorneys of record. We also straightaway had the Applicant lodge a Bond of Security, as required in terms of the Labour Court Rules. A Security Bond means the Applicant has to pay, to the satisfaction of the Court, the amount ordered in the Arbitration Award into a Trust Account. This is usually done into the Attorneys Trust account acting for the Applicant. This is a form of protection for the party who is successful in the Review application and is to ward off opportunistic parties who review for the sake of reviewing and not because of their case having merits i.e. if the Employee is successful that money is ready to be paid to him/her immediately, possibly with a Costs Order which would be payable separately from the Security Bond amount. If the Employer is successful in the Review Application then that money is simply reimbursed to them from their Attorneys’ Trust Account where it was being held. If the Employee is ordered to pay legal costs then he/she would need to do so out of their own pocket.

If an Arbitration Award orders an amount of compensation and payment thereof is not complied with, the successful party can issue a Warrant of Execution (Writ) and have the losing party’s assets attached and removed to be sold on auction to recover the amount due to them. In our Client’s case, she eventually learnt that the Union’s Attorneys had in fact allowed the Employer not to have to lodge Security. She never provided them with such instructions. The Client had already had a Writ issued by the CCMA in light of the Arbitration Award and was trying to have it served when she came back to us for help. The Sheriff never succeeded in serving the Writ or subsequently attaching and removing any of the Employer’s movable assets. When we took the matter over, we immediately acted to first have the Employer pay security; they complied albeit not in the exact amount awarded to our Client in the Arbitration Award but the court accepted the amount and we thereafter were compelled to accept it in good faith that should our Client succeed on Review, the Employer would pay her the difference of the Award, and costs if ordered to do so. We requested that they be ordered to pay our Client’s legal costs in our papers.

The matter has followed the usual course in respect of Review Applications in that the required Court papers have been correctly served and filed yet interestingly, the matter was only set down on 16 May 2018 for hearing by the Labour Court on 6 September 2018, after the matter began in 2015! We believe our Client has good prospects of success as the Company’s Disciplinary Code did not suggest a summary dismissal as a first offence, she was not suspended pending the outcome of the Hearing and the Employer did not adequately prove its case at the Arbitration. Employers and Employees are advised to carefully consider whether they are able to commit to their matter taking years to be finalised, even in the Labour Court who are usually more up to date with their processes.

We will update you once the matter has been argued.”

Leave a Comment