Effective handling of applications for postponement during internal disciplinary inquiries and arbitration hearings

June 1st, 2021

Rule 23 of the Rules for the Conduct of Proceedings before the Commission for Conciliation, Mediation and Arbitration (CCMA) deals with the procedure on how to postpone an arbitration and provides as follows:

‘(1) An arbitration may be postponed –

(a) by written agreement between the parties; or

(b) by application to the Commission and on notice to the other parties … .

(2) The Commission must postpone an arbitration without the parties appearing if –

(a) all the parties to the dispute agree in writing to the postponement; and

(b) the written agreement for the postponement is received by the Commission at least seven (7) days prior to the scheduled date of the arbitration.

(3) If the conditions of sub-rule (2) are not met, any party may apply in terms of rule 31 to postpone an arbitration by delivering an application to the other parties to the dispute and filing a copy with the Commission before the scheduled date of arbitration.

(4) After considering the written application, the Commission may –

(a) without convening a hearing, postpone the matter; or

(b) convene a hearing to determine whether to postpone the matter.’

In Free State Gambling and Liquor Authority v Motane NO and Others (LC) (unreported case no JR1130/16, J23/15, 10-3-2017) Tlhotlhalemaje J held at para 16 that:

‘(a) postponements at arbitration hearings are not to be readily granted;

(b) postponements in arbitrations should be granted on “less generous basis”. This approach is informed by the recognition that the [Labour Relations Act 66 of 1995] LRA requires that labour disputes need to be resolved expeditiously and thus arbitrators have a wide discretion in granting or refusing to grant a postponement;

(c) where fundamental fairness and justice justifies a postponement, the arbitrator may in appropriate cases, allow such an application even if it was not timeously made;

(d)  the Labour Court sitting in review will adopt a stringent and restricted approach to interfering with the refusal to grant postponements by arbitrators;

(e) it is only when a compelling case has been made for interfering with the exercise of the discretion of the arbitrator, will the court interfere with the refusal to grant a postponement. This can be in instances where the arbitrator was influenced by wrong principles or misdirection on the facts, or where the decision reached could not reasonably have been made by an arbitrator properly directing him/herself to all the relevant facts and principles.’

In the context of internal disciplinary hearings, the procedure for postponement is usually contained in the disciplinary policy of the employer. In some instances, there are compelling reasons, which show that it is fair for a disciplinary hearing to be postponed, however, in instances where no such procedure is outlined in the disciplinary policy of the employer, a decision to grant or refuse an application for a postponement of a disciplinary hearing should be made by a chairperson.

Some of the factors that the chairperson should consider, include among others, whether –

  • any exceptional circumstances exist to allow the postponement;
  • good cause has been shown by the applicant party (employee or employer) in the application for postponement;
  • the employee has been afforded an adequate time to prepare for the hearing; or
  • there have been any previous delays or requests for postponement.

In Old Mutual Life Assurance Co SA Ltd v Gumbi [2007] 4 All SA 866 (SCA), the court held that a mere production of a medical certificate may not necessarily be regarded as a sufficient reason to postpone a disciplinary hearing (para 19 and 21): ‘A mere production of the medical certificate was not, in the circumstances of this case, sufficient to justify the employee’s absence from the hearing. As the certificate did not allege that he was incapable of attending at all, the chairman was entitled to require him to be present at the resumed hearing so as to himself enquire into his capacity to participate in the proceedings. These facts play a major role in determining unfairness when the interests of both parties are taken into account. … When all these facts are viewed objectively, it cannot be said that Old Mutual has acted procedurally unfairly in continuing with the hearing in the employee’s absence and dismissing him for the misconduct of which he was found guilty. The employee and his representative are the only persons to blame for his absence’ (my italics).

In Lekolwane and Another v Minister of Justice and Constitutional Development 2007 (3) BCLR 280 (CC), the court held:

‘The postponement of a matter set down for hearing on a particular date cannot be claimed as a right. An applicant for a postponement seeks an indulgence from the court. A postponement will not be granted, unless this court is satisfied that it is in the interests of justice to do so. In this respect the applicant must ordinarily show that there is good cause for the postponement. Whether a postponement will be granted is therefore in the discretion of the court. In exercising that discretion, this court takes into account a number of factors, including (but not limited to) whether the application has been timeously made, whether the explanation given by the applicant for postponement is full and satisfactory, whether there is prejudice to any of the parties, whether the application is opposed and the broader public interest.’

In SA Broadcasting Corporation v Commission for Conciliation, Mediation and Arbitration and Others (2019) 40 ILJ 603 (LC), the employer’s (SABC) legal representative informed the Commissioner, the employees, and their legal representatives that his wife had been diagnosed with cancer and that she was scheduled to undergo chemotherapy treatment the next day, Tuesday, 22 November 2016. He asked to be excused until 11 am the next day for him to accompany her. A legal representative – who represented one of the applicants at the arbitration – mentioned that, to his knowledge, it was unlikely that the chemotherapy would be concluded by 11 am and suggested that the arbitration be adjourned until the following week. All present, including the Commissioner, agreed.

During the afternoon of 22 November 2016, the employer’s legal representative advised that due to unexpected developments in his wife’s treatment, he would be unavailable for the rest of the week. It transpired that the chemotherapy would take much longer than he had anticipated and that his wife would require his assistance afterwards. He mentioned that he would send his associate to apply for a postponement the next day. On the same afternoon of 22 November 2016, he sent a letter to all the attorneys representing the individual employees and informed them of the situation.

The arbitrator refused the postponement. He reasoned that the arbitration had been set down for five days and that the employer’s legal representative must have been aware prior to Monday already about the procedures his wife had to undergo. He was of the opinion that ‘there is no reason why counsel could not have been instructed or another colleague’.

The SABC took the arbitrator’s award on review to the Labour Court where it was held that the arbitrator’s refusal to postpone the arbitration in the unique circumstances of this case was irrational and unreasonable. The court reviewed and set aside the arbitrator’s ruling which refused the SABC’s request for postponement and remitted the dispute back to the CCMA for a fresh arbitration on the merits before a different Commissioner.

Chairpersons of disciplinary hearings may be lenient with applications for a first postponement. However, in the event where such applications are made deliberately with the intention to (directly or indirectly) delay and/or frustrate the proceedings, then a chairperson should adopt a rigid and strict approach in those circumstances. Therefore, it is recommended that employers should develop and incorporate in their disciplinary policies, a clear procedure regarding postponement of disciplinary hearings. This procedure will prevent unreasonable delays of the disciplinary hearing process and curtail costs associated with the process itself.

Magate Phala Dip Labour Law (University of Limpopo) PG Dip Labour Law (UJ) is a director at Magate Phala and Associates in Centurion.

This article was first published in De Rebus in 2021 (June) DR 4.

South African COVID-19 Coronavirus. Access the latest information on: www.sacoronavirus.co.za