Justice demands urgency: Labour court rejects late review

In a firm reminder of the importance of procedural compliance, the Labour Court of South Africa dismissed the South African Municipal Workers Union’s (SAMWU) application to review an arbitration award concerning the dismissal of Mr Mabusela, a bus driver employed by the City of Tshwane. The Court found that the application was filed excessively late, lacked a proper explanation for the delay, and had minimal prospects of success.

Background

Mr Mabusela was dismissed in July 2016 for misconduct involving dishonesty. Specifically, he was found to have had surplus money in his possession without issuing corresponding tickets to passengers, which raised concerns about revenue protection and trust. The arbitration award issued in December 2019 upheld the dismissal.

SAMWU, acting on behalf of Mabusela, attempted to file a review application nearly 11 months late. The union also failed to file a condonation application timeously and only did so in December 2022. The City of Tshwane, although also late in filing its answering affidavit, was granted condonation due to minimal prejudice and the interests of justice.

Legal implications of the judgement

Strict enforcement of timeframes

The Labour Court reaffirmed that review applications under section 145(1)(a) of the Labour Relations Act must be filed within six weeks of the arbitration award. Failure to comply requires a condonation application with a compelling explanation and strong prospects of success.

Implication: Legal representatives and unions must act swiftly and diligently when pursuing reviews. Courts will not tolerate excessive delays without proper justification.

Condonation is not automatic

The Court emphasised that condonation is not granted “merely for the asking”. Applicants must provide a detailed and accurate account of the delay, supported by evidence. In this case, SAMWU’s explanation was vague and failed to account for long periods of inactivity.

Implication: Parties must prepare thorough condonation applications, addressing every period of delay and demonstrating urgency and commitment to the matter.

Prospects of success matter

Even if the delay is explained, the Court will assess whether the review has reasonable prospects of success. The Court found that the arbitration award was well-reasoned, supported by evidence, and aligned with CCMA guidelines.

Implication: Weak review grounds will not rescue a late application. The merits of the case must justify the indulgence sought.

Finality in litigation

The Court noted that Mabusela’s dismissal occurred in 2016 and that prolonged litigation undermines the principle of finality. Employment disputes must be resolved expeditiously to serve the interests of justice.

Implication: Delayed litigation risks being dismissed outright, especially where the underlying dispute has aged significantly.

Key takeaways

For employers:

• Maintain clear disciplinary records and procedures. The City of Tshwane’s documentation and witness testimony were pivotal in defending the dismissal.
• Respond to litigation promptly. Although the City was late in filing its response, its minimal prejudice and substantive defence helped secure condonation.
• Trust is critical in roles involving financial responsibility. The Court upheld the dismissal based on dishonesty and breach of trust.

For employees:

• Act swiftly when challenging dismissals. Delays can be fatal to a case, regardless of its merits.
• Ensure legal representatives are proactive and compliant. SAMWU’s failure to manage the review process effectively contributed to the dismissal of the application.
• Understand the importance of procedural fairness. Even if the dismissal feels unjust, the legal process must be followed meticulously.

Final thoughts

This judgment serves as a cautionary tale for unions, employees, and legal practitioners. The Labour Court has made it clear that procedural compliance is not optional and that delays will not be excused without compelling reasons. The case also reinforces the importance of trust in employment relationships, especially where financial integrity is at stake.

Ultimately, the ruling upholds the principle that justice delayed is justice denied—not only for employers seeking closure but also for employees hoping for redress.

For advice or more information, contact Riona Kalua, head of our Labour and Employment team.