Resurrection from the archive

An important aspect of review applications is that they are considered urgent. Therefore, applicants are required to ensure that all papers (excluding heads of arguments) are filed within twelve months of launching the review application (paragraph 11.2.7 of the Practice Manual). If this time limit is not complied with, then the review application is archived and considered to have lapsed until good cause is shown as to why the application should be removed from archive.

This is one of the hurdles that Ms Samuels had to overcome in Samuels v Old Mutual Bank (DA30/15) [2017] ZALAC 10 (25 January 2017). Ms Samuels was dismissed for misconduct in 2007 and referred an unfair dismissal dispute to the CCMA. The Arbitration took place on 28 days over a period of four years. In 2011, the arbitrator found the dismissal to be substantively unfair and ordered that compensation equivalent to 12 months’ salary be paid to the employee. Ms Samuels instituted review proceedings, as she sought the award of compensation to be substituted with a reinstatement order.

In terms of the procedure for a review application, the applicant is required to file the record of the arbitration proceedings within 60 days of having been informed by the Registrar of the Labour Court that the record has been received and may be uplifted. In this regard, it was argued by Ms Samuels that the CCMA failed to produce the complete record of the arbitration proceedings resulting in it being filed in a piecemeal fashion. Despite launching the review application in May 2011, the final part of the transcript was only delivered in May 2014.

The Court file was archived in terms of paragraph 11.2.7 of the Practice Manual. A file being archived has the same consequences as the matter having been dismissed. In July 2014, Ms Samuels launched an application to have the file retrieved from the archive. The Labour Court dismissed her application to retrieve the archived file and held that in order for her to succeed with her application she was required ‘to prove an exceptional explanation, exceptional prospects of success, a material injustice and no prejudice to the respondent’. The Labour Court did acknowledge that the CCMA had also played a role in the delay but found that Ms Samuels’ legal representatives were not proactive enough in approaching the respondent’s representatives for a collaborative reconstruction of the record. Having regard to the merits, the court noted that her prospects of success were not ‘excellent.’ The court found that the respondents right to finality will assume more weight in cases where there has been an excessive time delay, even where the ‘excuses’ for the delay are acceptable.

Ms Samuels filed an appeal to the Labour Appeal Court (LAC) which took a very different stance. It was emphasised that courts can exercise discretion in applying the provisions of the Practice Manual depending on the ‘facts and circumstances’ of a matter. The requirement to show ‘good cause’ to have a file removed from archive was given an entirely different interpretation. Showing good cause demands that:

• the application must be bona fide;
• the applicant must provide a reasonable explanation which covers the entire period of the default;
• he/she has reasonable prospects of success in the main application; and
• it is in the interests of justice to grant the order.

The applicant need not go into the merits of her case to show reasonable prospect of success and it is sufficient to ‘set out facts that if established would result in his/her success’.

The LAC found that although the delay was excessive, the CCMA was solely responsible for the delay in filing the record in a piecemeal fashion. In such a case, the respondent’s right to finality does not ‘supersede the appellant’s right not to be unfairly dismissed.’ It was emphasised that the Practice Manual was implemented to facilitate the fair adjudication of disputes.

Although Ms Samuels has overcome the obstacle of having to resurrect the file from archive, the LAC did not make any finding on her prospects of success in the matter. The Labour Court will now have to determine whether the Arbitration Award is reviewable.

This case sends an important message to litigants to ensure that both the Rules of the Labour Court as well as the Practice Manual are complied with to the full extent.