Review Application Process:
After an arbitration award (“the award”) has been delivered by a Commissioner at the Commission for Conciliation, Mediation and Arbitration (“the CCMA”), parties have a limited timeframe to seek a review. The Labour Court requires that an aggrieved party file a review application of the award within six weeks of the date of the award being served on the party. The application aims to address an alleged defect in either the proceedings, the award, or the ruling. If, however, the defect involves corruption, an application can be made within six weeks of the date that the corruption is discovered.
Section 145(2) outlines what constitutes an alleged defect in the arbitration award. The following instances fall under the ambit of defects: (a) the commissioner either (i) committed misconduct in relation to his or her duties as an arbitrator; (ii) committed a gross irregularity in the conduct of the arbitration proceedings; or (iii) exceeded his or her powers; or (b) the award was been improperly obtained.
Initiating a Review Application:
The process of initiating a review application is meticulous. The Applicant, the party seeking review, applies to the Labour Court on notice of motion, together with a founding affidavit. This action triggers the CCMA, in terms of Rule 7A(2)(b) of the Rules of the Labour Court (“the Rules”), to dispatch the record of the proceedings sought to be corrected or set aside to the Registrar of the Labour Court.
Once the CCMA has delivered the record to the Labour Court, the Registrar must inform the Applicant, in terms of Rule 7A(5), that the record has been received and may be uplifted. The Applicant must collect the record within seven days (see clause 11.2.1 of the Practice Manual of the Labour Court) (“the Practice Manual”). The record must then be copied or transcribed (if applicable) by the Applicant (at its own cost) and filed at the Labour Court within 60 days of the date on which the Applicant was advised by the Registrar that the record had been received (see clause 11.2.2 of the Practice Manual). The Applicant can then within a stipulated time period after receipt of the record, by way of notice, amend, add to or vary the content of its founding papers and supplement them if it deems this necessary, alternatively stand by the contents of its founding papers (see Rule 7A(8) of the Rules).
Consequences of Incomplete Records:
Case law shows that there are certain instances where an incomplete or partial record has been filed by an Applicant for some or other reason. The incomplete or partial record could be due to the CCMA, or Bargaining Council, if relevant, not having provided the complete record, or the transcribers missing parts of the record. It is important for an Applicant to ensure that it receives the complete record before filing it. Clause 11.2.3 of the Practice Manual then becomes relevant, as it provides a mechanism to remedy a situation where the Applicant has not been able to file the complete record within the prescribed period. Clause 11.2.3 reads as follows:
“If the applicant fails to file a record within the prescribed period, the applicant will be deemed to have withdrawn the application, unless the applicant has during that period requested the respondent’s consent for an extension of time and consent has been given. If consent is refused, the applicant may, on notice of motion supported by affidavit, apply to the Judge President in chambers for an extension of time. The application must be accompanied by proof of service on all other parties, and answering and replying affidavits may be filed within the time limits prescribed by Rule 7. The Judge President will then allocate the file to a judge for a ruling, to be made in chambers, on any extension of time that the respondent should be afforded to file the record.”
A recent unreported Labour Appeal Court ruling in the case of (South African Police Services v Coericius and Others (CA 11/2021) sheds light on the consequences of incomplete records. The Court clarified that there is no distinction between parts of the record relevant for different aspects of the review application. The ruling emphasises the importance of filing a complete record within the prescribed period and underscores the Practice Manual as a crucial guide for Applicants.
Recent Case: South African Police Services v Coericius and Others:
In this particular case, the issue before the Court was whether a review application by the South African Police Services (“the SAPS”) had fallen foul of clause 11.2.3 of the Practice Manual and if so, what consequences followed. Whilst the detailed facts of the case before the Labour Court (i.e. before being appealed to the Labour Appeal Court) are not important, the following facts provide context insofar as clause 11.2.3 is concerned:
- An incomplete record was lodged by the SAPS on 19 June 2019 consisting of what was made available at the time.
- The 60-day period mentioned in clause 11.2.2 of the Practice Manual had expired.
- The SAPS failed to follow the requirements for obtaining an extension in terms of clause 11.2.3 following the expiry of the 60-day period.
- As a result, the opposing party launched an application requesting that (i) the review application be dismissed for lack of prosecution, alternatively that (ii) the SAPS be directed to comply with Rule 7A.
- The SAPS contended that it did not need to comply with clause 11.2.3 as it had filed the complete record in respect of one aspect of the review application, although an incomplete record in respect of another aspect of the review application.
The first question before the court was what was meant by the filing of a ‘record’ as contemplated in the Practice Manual. The Court ruled that there cannot be a distinction between a part of the record relevant for one aspect of the review application, versus another part. The Court, in paragraph 6 of the judgment, stated that “there is only one review application, not two,” highlighting the importance of completeness in the filing process. It follows then that the whole or complete record must be filed within the 60-day period.
The Court further emphasised the orderly hearing of an application, stating that “the whole house must be in order” (our emphasis). An Applicant cannot rely on the inability to obtain the complete record within the prescribed period as a defence for late filing. Instead, the Labour Appeal Court makes it clear that clause 11.2.3 of the Practice Manual must be utilised to avoid falling foul of the prescripts imposed for review applications. When an Applicant foresees that it will not be able to file the complete record within the 60-day period, it should approach the Respondent and seek its consent for the extension of the prescribed period. If consent is refused, the Applicant must make a formal application to the Judge President in chambers for an extension of the time. The Court is not inclined to entertain an Applicant which does not follow the prescripts of the Practice Manual.
Strict Adherence to Prescribed Periods:
Furthermore, in the reported Labour Appeal Court matter of E Tradex (PTY) Ltd t/a Global Trade Solution v Finch and Others (CA 12/2021), the Court emphasised its strict adherence to prescribed periods. The Court highlighted clause 11.2.7 of the Practice Manual, stating that an Applicant must ensure that all necessary papers for a review application are filed within 12 months of launching the application. Failure to do so results in the application being archived and considered dismissed. In fact, clause 16.3 of the Practice Manual unequivocally states that an archived application is considered to have not merely lapsed, but is considered to be dismissed. The Court in E Tradex, at paragraph 9, confirmed this and went on to state that: “Where a file has been placed in the archives, it shall have the same consequences as to further conduct by any respondent party as to the matter having been dismissed” (own emphasis). Reinstating a dismissed matter requires a formal application, and the Court may reject it if there is no good cause shown for the application to be reinstated.
Importance of the Practice Manual:
It is apparent that the Practice Manual of the Labour Court is an important document with which one should become familiar. The Labour Appeal Court, in Macsteel Trading Wadeville v Van der Merwe NO & others (2019) 40 ILJ 798 (LAC) at para 22, has stated that “The underlying objective of the Practice Manual is the promotion of the statutory imperative of expeditious dispute resolution. It enforces and gives effect to the Rules of the Labour Court and the provisions of the LRA. It is binding on the parties and the Labour Court. The Labour Court does, however, have a residual discretion to apply and interpret the provisions of the Practice Manual, depending on the facts and circumstances of a particular case before the court.” While the Labour Court has a residual discretion regarding the application and interpretation of the provisions of the Practice Manual, the above recent judgments affirm a strict approach to the prescribed periods where a review application is concerned. This strictness aligns with the underlying objective of promoting expeditious dispute resolution.
In conclusion, navigating the intricacies of review applications in the Labour Court demands meticulous attention to prescribed timeframes. When an arbitration award appears defective, seeking legal assistance is imperative for a competent legal practitioner to evaluate the award and advise on the prospects of success in bringing a review application.
The 6-week period afforded to a party for bringing a review application is relatively short, considering the comprehensive analysis of all available information and documentation required by legal practitioners. The Practice Manual and Rules discussed in this article are applicable to all review applications, serving as a comprehensive guide for parties involved in the process.
While the Practice Manual and Rules provide mechanisms to address non-compliance with time limits, parties should be aware that there is no guarantee that the sought relief will be granted. Additionally, these mechanisms may result in additional legal costs. Therefore, parties should approach the review process with diligence, recognising the importance of adhering to prescribed time periods to ensure fair and expeditious resolution without unnecessary complications.