Employment law update – Interpreting a ‘reasonable time’, in which to file an application

December 1st, 2017
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Moksha Naidoo BA (Wits) LLB (UKZN) is an advocate at the Johannesburg Bar.

G4S Secure Solutions (SA) (Pty) Ltd v Malinga (LAC) (unreported case no JA68/2016, 15-9-2017) (Landman JA (Davis JA and Phatshoane AJA concurring))

The Labour Appeal Court (LAC) was faced with two primary issues in this matter namely:

  • First, whether a court, as a general directive to litigants, can determine a specific time frame in which to make an application, under circumstances where the statute states that the application be made within a reasonable time.
  • Secondly, when does it become necessary for a litigant at the Commission for Conciliation, Mediation and Arbitration (CCMA) to apply for condonation when the last day on which to serve an application, respond to an application or refer a dispute that falls within the period 16 December to 7 January.

Background

The employee referred an unfair labour practice dispute to the CCMA whereafter, on 26 November 2013 a default award was delivered in his favour. The award was served on the employer on 13 December 2013. On 7 January 2014 the employer filed an application to rescind the award on grounds that it did not receive the notice of set down.

The rescission application came before the first respondent commissioner who, in a ruling dated 27 March 2014, dismissed the application. Her ruling was informed by an understanding that the employer made the application outside the 14-day period, set out in the CCMA Rules and without an application for condonation, she could not entertain the merits of the rescission application.

On 26 May 2014, the employer filed an application in terms of s 158(1)(h) of the Labour Relations Act 66 of 1995 (LRA) to review and set aside the commissioner’s ruling.

On 8 December 2014, the employer filed a condonation application explaining why it filed its review application nearly two months after the commissioner’s ruling.

The matter was heard at the Labour Court (LC) on 14 December 2014.

While accepting that the LRA requires an application under s 158(1) be made within a ‘reasonable time’, the court relied on the judgment of Weder v MEC for the Department of Health, Western Cape (2013) 34 ILJ 1315 (LC), where a ‘reasonable time’ was interpreted to mean a six-week period, whereafter, the review application must be accompanied by an application for condonation. Following this approach, the court found the delay in filing the application was excessive and without assessing the employer’s prospects of success in its review application, dismissed the condonation application.

In the Weder case the LC stated:

‘What, then, is a “reasonable time” in the context of s 158 of the LRA? It is tempting simply to assume that it should be six weeks, by analogy to the time period provided for in s 145. At the most, it cannot be more than the 180 days provided for in PAJA; in fact, given that PAJA does not apply and that the process is closely aligned to that set out in s 145 and rule 7A, I would suggest that anything more than six weeks should at least trigger an application for condonation.’

On appeal the LAC found this to be the incorrect approach and held:

‘It is not permissible for a court to fix a certain time which it regards as a reasonable time; nor is it permissible to insist that an application for condonation should be made after a specific time. An application for condonation must be made when the delay is unreasonable and must be made at the earliest opportunity.’

Reaffirming the correct legal principle, the LAC held that when a statute prescribes that an application be made within reasonable time, as does s 158, a court must first determine whether there was an unreasonable delay in bringing the application and if so found, whether such a delay should be condoned. This, the LAC added is a factual inquiry, which would turn on the circumstances of each case.

Adopting this approach and on this basis the employer filed its review application two months after the commissioner’s ruling, the LAC found there was no unreasonable delay in bringing the review application. Having regard to the explanation tendered by the employer as to why it took it two months to file the application, the LAC was satisfied that even if its finding on this issue was wrong; the employer provided a satisfactory explanation which justified its actions be condoned.

Turning to the commissioner’s ruling in respect of the employer’s rescission application, the LAC found the employer’s application was timeously filed and hence there was no need to seek condonation.

CCMA r 3 states:

‘(1) For the purpose of calculating any period of time in terms of these Rules –

(a) day means a calendar day; and

(b) the first day is excluded and the last day is included, subject to sub-rule (2).

(2) The last day of any period must be excluded if it falls on a Saturday, Sunday, public holiday or on a day during the period between 16 December to 7 January.’

Therefore, on a proper understanding of the CCMA Rules, the employer’s rescission application was filed within the prescribed time frame. The 14-day period in which to file a rescission application ended within the period 16 December to 7 January, which in turn meant that the last day in which to file the application was 8 January 2014.

The employer also provided a plausible explanation as to why it did not attend the arbitration and on its version, had reasonable prospect of success.

Following these finding the LAC ordered that the appeal succeed and replaced the LC’s order with an order setting aside the commissioner’s ruling and replacing it with a finding that the default award be rescinded. There was no order as to costs.

This article was first published in De Rebus in 2017 (Dec) DR 57.

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