The Practice Manual of the Labour Court expressly aims to promote consistency in practice and procedure and to set guidelines on the standards of conduct expected of those who practice in the Labour Court.  Despite these laudable objectives, a fair measure of uncertainty persists regarding the practical implications of the various clauses of the Practice Manual which govern the ‘deemed withdrawal’ and ‘archiving’ of review applications in the Labour Court.

What does the Practice Manual say about the deemed withdrawal and archiving of review applications?

According to the Practice Manual, review applications will be deemed to be withdrawn or archived in the event that:

• the applicant has failed to file the record of the arbitration proceedings within 60 days of notification from the Registrar that the record has been received by, and may be uplifted from, the Labour Court (see clauses 11.2.2 and 11.2.3);
• the applicant has failed to file all necessary papers in the application (excluding heads of argument) within 12 months of the date of the launch of the application and to notify the Registrar in writing that the application is ready for allocation for hearing (clause 11.2.7); or
• a period of six months has elapsed without any steps taken by the applicant from the date of filing the application, or the date of the last process filed (clause 16.1).

The practical consequences of the deemed withdrawal or archiving of a review application are sometimes unclear because, depending on the nature of the non-compliance by the applicant, the Practice Manual gives the applicant the option to:

• to show good cause why the application should not be archived or should be removed from the archive (clause 11.2.7); and/or
• where the file has been archived, to submit an application, on affidavit and on notice to all other parties to the dispute, for the retrieval of the file (clause 16.2).

What are the respondent’s rights once a review application is deemed to be withdrawn or archived?

Despite the above options, there should be no confusion in the mind of a respondent regarding the practical consequences of the deemed withdrawal or archiving of a review application where the applicant has not applied for the reinstatement of the review application.  In that regard, clause 16.3 of the Practice Manual confirms that “where a file has been placed in archives, it shall have the same consequences as to further conduct by any respondent party as to the matter having been dismissed”.

This should mean that the respondent is then free to conduct their affairs as if the review application had been finally dismissed.  If that were the case, respondent employees, in particular, would be able to enforce compliance by applicant employers with the terms of the arbitration award that is no longer under review.

May the respondent enforce an arbitration award once a review application is deemed to be withdrawn or archived?

This is exactly what one such employee respondent sought to do in the case of Greater Taung Local Municipality v South African Local Government Bargaining Council & others (JA 113/21), a matter heard by the Labour Appeal Court on 1 November 2022 (judgment delivered on 16 January 2023).  In this case, Mr Sebitloane was dismissed by the Greater Taung Local Municipality based on allegations of misconduct.  Mr Sebitloane thereafter referred an unfair dismissal claim to the South African Local Government Bargaining Council.  Mr Sebitloane’s unfair dismissal claim was successful at arbitration before the Bargaining Council.  The arbitrator found that Mr Sebitloane’s dismissal was substantively unfair and the Municipality was ordered to reinstate him.  The Municipality decided to bring an application in the Labour Court to review and set aside the arbitration award.  However, having launched the review application, the Municipality then failed to deliver the record of the arbitration proceedings within the 60 day period prescribed under clause 11.2.2 of the Practice Manual. IMATU, acting on behalf of Mr Sebitloane, therefore brought the following interlocutory applications in order to enforce Mr Sebitloane’s rights under the arbitration award:

• an application in terms of rule 11 of the Labour Court Rules for the review application to be dismissed; and
• an application in terms of section 158(1)(c) of the Labour Relations Act, 1995 to have the arbitration award made an order of court.

Concerning the rule 11 application, the Labour Court rightly found that the review application was already deemed to have been withdrawn in terms of clause 11.2.3 of the Practice Manual due to the Municipality’s failure to deliver the record of the arbitration proceedings within the 60 day period prescribed under clause 11.2.2 of the Practice Manual.  On this basis, the Labour Court reasoned that the rule 11 application was academic and refused to issue any order in respect of that application.  In relation to Mr Sebitloane’s application to have the arbitration award made an order of court, the Labour Court found that there were “no legal constraints to making that order”.  At the same time, however, the Labour Court stated that the Municipality had the option to to apply for the reinstatement of the review application.  In the circumstances, the Labour Court issued an order that:

• the review application was deemed to be withdrawn in terms of clause 11.2.3 of the Practice Manual; and
• the arbitration award was made an order of court.
• The Labour Appeal Court saw it differently

The Municipality then took this judgment on appeal to the Labour Appeal Court.

The Municipality argued on appeal that the Labour Court’s finding that the Municipality had the option to bring an application to reinstate the review application was inconsistent with the Labour Court’s order for the arbitration award to be made an order of court.  The Municipality argued that the above finding and order were “incapable of operating simultaneously”.  IMATU, on the other hand, contended that the Labour Court’s judgment was unassailable because the Municipality’s review application had lapsed and the Municipality had not applied for the review application to be reinstated.

The Labour Appeal Court agreed with the Municipality’s submission that because the Municipality had the option to apply for the reinstatement of the review application, the Labour Court should not have made the arbitration award an order of court, particularly considering that once an arbitration award is made an order of court it is not reviewable.  Thus, according to the Labour Appeal Court, by making the arbitration award an order of court, the Labour Court effectively denied the Municipality the opportunity to bring an application to reinstate the review application.

The Labour Appeal Court further criticized the Labour Court for having made the arbitration award an order of court in the full awareness that the Municipality intended to bring an application for the reinstatement of the review application – something the Municipality’s counsel had apparently told the Labour Court in her address.  This, the Labour Appeal Court found, was an improper exercise of the Labour Court’s discretion.

The Labour Appeal Court therefore set aside the order of the Labour Court and replaced it with an order:

• dismissing the rule 11 application;
• directing the Municipality to file its reinstatement application within seven days; and
• postponing the application to make the arbitration award an order of court sine die (i.e. with no fixed date for resumption).

But was the Labour Court incorrect?

The Labour Appeal Court was certainly generous towards the Municipality by allowing it a further opportunity to apply for the reinstatement of the review application.  The Municipality ought to have brought a reinstatement application before Mr Sebitloane’s application to have the arbitration award made an order of court was heard by the Labour Court.  At the same time, Mr Sebitloane will have had reason to feel aggrieved at the indefinite postponement of his application to have the arbitration award made an order of court in circumstances where the Municipality already had ample time to apply for the reinstatement of the review application and had failed to do so.

The Labour Appeal Court’s judgment suggests that where a review application is deemed to have been withdrawn or archived, the dilatory applicant may successfully resist an application by the respondent for the relevant arbitration award to be made an order of court by simply informing the Labour Court that they intend to apply for the reinstatement of the review application.  Indeed, there appears to have been no dispute that, even by the time the appeal was heard by the Labour Appeal Court, the Municipality had still not brought an application to reinstate the review application.

Unfortunately, the effect of the Labour Appeal Court’s order was that Mr Sebitloane would have to return to court again if the Municipality either failed to bring the reinstatement application, or if the Municipality brought that application and it was dismissed.  The Labour Appeal Court’s order also meant that the matter would remain in an already backlogged court system.

Practice and Practicality

The LRA-espoused objective of ensuring the expeditious resolution of labour disputes may, perhaps, have been better served had the Labour Appeal Court granted an order that did not entail the possibility of Mr Sebitloane having to return to court to have his arbitration award made an order of court.

One such alternative may have been for the Labour Appeal Court to order instead that the arbitration award would become an order of court seven days after the date of judgment, unless the Municipality were to bring a reinstatement application within that period and, in that event, the arbitration award would become an order of court if and when the reinstatement application was dismissed, or, if the reinstatement application was successful, if and when the review application was dismissed.  Of course, on that approach, if the review application was ultimately successful, the arbitration award would be reviewed and set aside (and it would not become an order of court).

That said, the Labour Appeal Court understandably sought to strike a pragmatic balance between the right of the Municipality to apply for the reinstatement of its review application and Mr Sebitloane’s right to apply for his arbitration award to be made an order of court.  However, it cannot have been the intention of the drafters of the Practice Manual to deprive a respondent, in circumstances such as Mr Sebitloane’s, of the right to have the arbitration award made an order of court, particularly considering that clause 16.3 of the Practice Manual confirms that “where a file has been placed in archives, it shall have the same consequences as to further conduct by any respondent party as to the matter having been dismissed”.  By depriving Mr Sebitloane of the right to have the arbitration award made an order of court despite the deemed withdrawal of the review application and the failure of the Municipality to apply for the reinstatement of the review, the Labour Appeal Court did not allow Mr Sebitloane to conduct his affairs as if the matter had been dismissed.

This article does not constitute legal advice. For an informed opinion and/or assistance with a labour-related matter, you are encouraged to arrange a formal consultation with the author.

Written by Fasken Partner Neil Searle and Associate Designate Catherine Hendricks