Practitioners and Labour Court should find workable ways in streamlining delays in employment disputes

The Constitutional Court has expressed its dismay at the lengthy delays in finalising an employment law dispute when it handed down judgment in late November on a matter that was first brought to court six and a half years ago. Johan Botes, director in Employment Law at Cliffe Dekker Hofmeyr business law firm said the judgment by the Constitutional Court follows on the heels of a number of judgments by the Supreme Court of Appeal that also criticised the slow pace of dispute resolution in the Labour Court.

"Practitioners and representatives from the Labour Court have recently met to discuss streamlining processes in the Labour Court.

“It is of cardinal importance that the Court and practitioners work together to ensure that employers and employees do not lose faith in the judicial processes,” said Botes.

“If that were to happen, we may see more parties turning to private arbitration as a method of resolving employment disputes. This will deprive the country of a legacy of judicial decisions that forms part of our law.”

“There are a number of factors that contribute to the slow pace of labour adjudication. While the Labour Court and Labour Appeal Court administration certainly contributes significantly to delays, unrepresented parties and practitioners should also shoulder some blame,” he noted.

“The Labour Court system allows for parties to represent themselves, but this often leads to delays because their applications are not properly drafted or do not contain the essential facts. This often leads to postponements, when an objection is raised by the other parties about the deficiency of the application.

“Such objections may be viewed by others as practitioners using technicalities to stall the process, but they are under obligation to protect their clients’ interest. It is in no-one’s interest that the court roll is clogged with illegible applications or applications where no one can readily ascertain the applicant’s complaint.

“However, practitioners themselves are not without blame in that frivolous claims are sometimes brought for tactical, or other, reasons unrelated to the merits of the matter. This adds the congestion of the roll and the workload of the Bench.

“These and other causes for delays are being discussed by practitioners and the Court in an effort to find workable solutions to expedite the finalisation of employment disputes,” Botes said.

The matter in question (Zwane and five others v Alert Fencing CC) concerned six employees who were retrenched by Alert Fencing CC in May 2004.

The employees obtained a default judgment, in the absence of their erstwhile employer, in the Labour Court in May 2005. The employer was barred from attending the proceedings as its legal representative failed to attend the pre-trial conference, resulting in the bar ordered by the Labour Court judge.

In terms of the Rules for the Conduct of Proceedings in the Labour Court, the judge may bar a party from appearing at the hearing where the party failed to attend the pre-trial conference, without showing good cause for such a failure. The hearing was convened without notice to the employer.

The employer later had the default judgment rescinded as its legal representative showed good cause for not attending the pre-trial conference. The retrenched employees then appealed. The Labour Appeal Court dismissed their appeal, whereafter they appealed to the Constitutional Court.

"The Constitutional Court dismissed their application for leave to appeal. The effect of the judgment is that the party may still show good cause why it did not attend a pre-trial conference.

The Constitutional Court ordered that its judgment in this matter be brought to the attention of the Judge President of the Labour Appeal Court, in that the matter had taken so long to resolve.

"This Constitutional Court judgment has added further impetus to the discussions on the delays in employment disputes and emphasised the need for all the parties to contribute to the smooth resolution of employment disputes," Botes added.

Written by: Johan Botes, Director: Employment Law at Cliffe Dekker Hofmeyr