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DELAYS IN PROSECUTING REVIEW APPLICATIONS IN THE LABOUR COURT

By Henry Ngcobo Monday, October 16, 2006
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The Labour Court is gradually making a stand against parties, especially employers, who bring applications in the Labour Court to review and set aside CCMA or Bargaining Council arbitration awards awarded against them and then fail to take the necessary steps to prosecute those applications to their finality after they had been launched.

Most of the delays arise at the record transcription or preparation stage resulting in the prosecution of the review application being unduly prolonged. In certain instances, the delays are attributable to the CCMA or Bargaining Council involved not responding timeously to the request calling upon it to dispatch the record of the proceedings sought to be reviewed to the Labour Court, or responding by filing a record which is less than complete or satisfactory, or the record of the proceedings sought to be reviewed not being available (the tape recordings being blank or lost) with a necessity for parties having to attempt a reconstruction of the record. This takes time and may, on its own, unduly prolong the finalisation of the review proceedings.

In one judgment (JDG Trading v Sadiki and others), the Labour Court remarked that there is a growing concern on how long review application can be dragged out simply by doing nothing about serving the record. Strong reliance is usually placed on alleged defects of the CCMA’s administration and case management by the parties concerned to justify the delay. The Court remarked that CCMA’s mismanagement (whether or not there was any merit in this) was being manipulated by some parties to their advantage into delaying the prosecution of their review proceedings in the Labour Court.

Recently in two separate judgments handed down recently (Buzuidenhout v Johnston and Autopax Passengers Services (Pty) Ltd v Transnet Bargaining Council and others), the Labour Court dismissed review applications brought by employers on the basis that the employers concerned had unreasonably delayed in taking the necessary steps to prosecute their review applications. The delays in the cases concerned were inordinately long and in one case it extended over a period of three years. The Court remarked that unless such conduct was stopped, it risks bringing the labour arbitration and adjudication system into disrepute, making a mockery of the labour policy aimed at effective dispute resolution. One of the objectives of the Labour Relations Act is efficient resolution of labour disputes and such conduct by parties goes against this objective.

A growing them that is developing thought these judgment is that all parties to the litigation (including the CCMA and Bargaining Councils) have an obligation to ensure that disputes are dealt with expeditiously. A party that has brought the review application proceedings in the Labour Court bears the primary responsibility to ensure that this happens. All the other parties have a secondary responsibility. Where the party that has brought review proceedings unreasonably delays or fails to take necessary steps to ensure that the Court proceedings proceed to finality without any delays, the Labour Court may, in appropriate circumstances, dismiss the review proceedings.

The moral of the story is that the parties, especially the ones who bring review proceedings in the Labour Court, should be diligent and vigilant in prosecuting their review proceedings in the Labour Court, failing which their review proceedings may be dismissed on account of their failure to pursue them vigilantly and diligently.