Expeditious Resolution is the Name of the Game – Are We Winning?

Introduction 

The Labour Relations Act 66 of 1995, as amended (“the LRA”) sets out in section 1(d)(iv) that one of its main objectives is “the effective resolution of labour disputes”. Ancillary to this objective is the notion of ‘expeditious resolution of labour disputes’.

In recent months, the question of whether these objectives are being met is one being asked by many, with the evidence suggesting that it is not. The Labour Appeal Court (“LAC”) in the matter of Koko v Greater Tubatse Municipality & Others (2021) 42 ILJ 1019 (LAC) has recently been faced with the aforementioned question.

The Factual Matrix

The following case concerned an alleged unfair dismissal of Mr Koko (“the employee”) in circumstances where the Greater Tubatse Municipality (“the employer”) claimed that the employee had not been legally appointed into the post of legal administrative officer and who had consequently been dismissed for the irregular appointment. 

The employee’s employment with the employer commenced on 24 February 2013. The decision to dismiss him was taken some six months after his appointment on 19 August 2013, based on, inter alia, the employer’s contention that the employee did not apply for the position as required by the advertisement as his application was not received within the stipulated period as advised in the advertisement. 

In contrast to this argument, the employee contended that he had submitted his application on time; that he had been called to an interview and was later advised that he was the successful candidate and given an appointment letter.

Aggrieved by his dismissal the employee thereafter referred his dispute to the South African Local Government Bargaining Council (“the bargaining council”) who after examining the evidence before it concluded that the employer had failed to dispute the version put forth by the employee, namely that he had applied for the position in question and had been duly appointed. The bargaining council further noted that no disciplinary proceedings had been instituted by the employer and that the employee had been summarily dismissed.

Ultimately, the bargaining council found that the dismissal of the employee had been both substantively and procedurally unfair. The employee was awarded reinstatement to his previous position as from 7 March 2014 as well as payment of backpay in the amount of R167 200.00.

Labour Court 

The employer in turn sought to review and set aside the arbitration award in terms of s158(1)(g) of the LRA. In the Labour Court’s (“LC”) judgment the Court referred to the pre-arbitration minute as if it constituted the basis of the factual dispute and held that the arbitrator had failed to apply his mind properly to the evidence presented. 

The LC accordingly found on the basis of the shortlist provided and the absence of the employee’s name thereon, that the interview and appointment of the employee was irregular. For these reasons, the LC reviewed and set aside the arbitration award. 

Labour Appeal Court 

Frustrated by this outcome, the employee appealed the findings of the LC. The Labour Appeal Court (“LAC”) on 10 December 2020 concluded that the LC had engaged in speculation as opposed to drawing reasonable inferences on why the appointment had been made rather than concentrating on the facts placed before the court, including those that were common cause, such as the concession that the employee’s application had been captured and that he had been interviewed and scored highly.

The LAC thus held that in the absence of any evidence, the inextricable conclusion was that the employee had been appointed to the position and was summarily dismissed without the provision of justifiable reasons and without a disciplinary hearing having been conducted. The Court accordingly held that the arbitration award was a reasonable award on the basis of the evidence presented and the Court upheld the appeal. 

Relief

Once the LAC upheld the appeal it had to then deal with the relief as the employee had originally been awarded reinstatement and back-pay. The employer was accordingly faced with the task of having to pay remuneration for more than six years, notwithstanding that the employee was only employed for some six months. 

The LAC lambasted the fact that the Court lacked the necessary discretion to alter a remedy such as that posed above and further criticised the excessive delay occasioned in the finalization of the dispute, holding that the case “makes a mockery of one of the objects of the LRA being the expeditious resolution of labour disputes”. 

As a consequence of these shortfalls the LAC urged the legislature to reconsider the question of providing the Court with a more expansive set of discretionary powers so as to prevent what is otherwise an excessive amount of money which is to be paid to the successful party in a case such as the aforementioned matter.

In addition, the LAC further emphasized a need to investigate the causes of the extraordinary length of time that it is now taking to dispose of all too many labour disputes. It advised the legislature to consider the problems facing the court and to develop legislative amendments accordingly. 

Conclusion

This case is a prime example of the fact that we have not yet achieved the effective and expeditious resolution of labour disputes as envisaged in the LRA, due to the inordinate delay in the finalization of the foregoing dispute.

Litigants facing labour disputes are encouraged to uphold and promote the objects and purpose of the LRA to ensure their disputes are finalized in an effective and expeditious manner. Unfortunately, delays caused by the court system are often beyond the control of litigants and can ultimately result in outrageous and unfair outcomes. More needs to be done to prevent these situations from occurring. The legislature has accordingly been urged to amend the LRA so as to ensure that justice is served effectively and expeditiously.

Written by Gael Barrable and Mzamo Danana 
of Cowan-Harper-Madikizela Attorneys

Gael Barrable
Mzamo Danana CHM Legal Attorneys