SASLAW

1. SASLAW 2011 AGM Expediting Labour Court Processes André van Niekerk

2. Labour Court Processes The problem: “At this stage it is perhaps necessary to clarify what is meant by ‘systemic delay’. It means nothing greater or less than a delay that occurs in the system of labour dispute resolution under the provisions of the LRA, such delay being one of the underlying problems that the LRA seeks to remedy.

3. Labour Court Processes The potential culprits: “The participants in that system are employers and employees, their representatives (legal and otherwise), the officials tasked with conciliation, mediation and arbitration in the CCMA and last, but not least, the judges in the Labour Court, the Labour Appeal Court, the Supreme Court of Appeal and in this court.”

4. Labour Court Processes The potential culprits (cont): “The delays in the system are caused by any one or more of these actors. “Systemic delay’ is not an impersonal, inevitable and independent force, it is simply a delay caused by the inaction of people within the dispute resolution process. “ Froneman J in Billiton Aluminium SA Ltd t/a Hillside Aluminium v Khanyile & others (2010) 31 ILJ 273 (CC).

5. Labour Court Processes The intention: “The entire scheme of the LRA and its motivating philosophy are directed at cheap and easy access to dispute resolution procedures and courts. Speed of result was its clear intention. Labour matters invariably have serious implications for both employers and employees.” Strategic Liquor Services v Mvumbi & others (2009) 30 ILJ 1526 (CC)

6. Labour Court Processes The reality: “We conclude by noting once again that it is a matter of concern that proceedings concerning an unfair dismissal in October 1998 should not have reached their final resolution some ten years later.” Netherburn Engineering v Mudau NO [2009] 6 BLLR 517 (LC)

7. Labour Court Processes The solution: “What is needed is to scrutinize the role of each of the actors in the system to determine how and to what extent each may have contributed to the problem that is said to have caused the delay.” Froneman J in Billiton.

8. Labour Court Processes Delays in the Labour Court cannot be viewed in isolation – all of the actors in the statutory chain are accountable to meet the statutory purpose of expeditious dispute resolution.

9. Labour Court Processes Employees/Employers Are generally bound by tight time limits imposed by legislation – generally no systemic delay here; problem lies with granting of condonation. Role of internal processes in delay e.g. complex procedures and appeals, especially in the public sector. Problem with enforcement of awards, implementation of settlement agreements; strategy by unscrupulous employers?

10. Labour Court Processes Legal and other representatives (e.g. unions, employer organisations): 1. No proper assessment of prospects of success, e.g. Filing of applications that are hopelessly out of time, blame internal structures. 2. Technical points – hearing on merits delayed; opposition to well- founded applications for condonation. 3. Non –availability of representatives 4. “Inertia”

11. Labour Court Processes CCMA 1. Condonation too easily granted? 2. Inadequate/incomplete records; delays in providing records generally. 3. Other?

12. Labour Court Processes Labour courts 1. Allowed representatives to manage litigation process 2. Set downs 2. Postponements 3. Delays in handing down judgments and rulings 4. Inefficient management of trial and motion roll 5. Delays in responding to correspondence

13. Labour Court Processes Labour Courts Recently adopted measures to address delays: 1. Policy on postponements 2. Policy on reserved judgments 3. New Directive -aimed at a variety of procedures, including urgents, defaults, requirement of practice note, fast tracking, etc. 4. New Guidelines -aimed largely at enforcement procedures. Aim to introduce greater degree of consistency

14. Labour Court Processes Labour Courts The winds of change...? [12] What is significant about the nature of proceedings in this court, and what distinguishes them from proceedings in the civil courts, is the statutory injunction to resolve labour disputes expeditiously and efficiently. In the civil courts, in most instances, requests for postponements, for example, can ordinarily be dealt with on the basis that any delay can be cured by an appropriate order as to costs. In other words, it is the interests of the litigants that come into play, and the means by which any prejudice to either of them can be addressed. In this court, there is the extraneous factor of a statutory policy specifically directed at expeditious dispute resolution. This is not an issue that can be addressed only by costs orders – as Froneman J pointed out, all of the various components of the statutory system of dispute resolution – the judges and administrative staff of the court, legal practitioners and trade union and employers’ organisation officials all have an obligation to ensure that the purpose underlying the Act is fulfilled. I would venture to suggest that all applications for the condonation for late referral of claims or delivery of documents, and applications such as the present, ought to be viewed through this particular lens. A failure to do so would simply serve to exacerbate the situation that the SCA and the Constitutional Court have bemoaned. Van Niekerk J Dlamini v Alkara Electroplating (unreported)

15. Labour Court Processes Labour Courts The winds of change...? “The LRA has been in existence for more than fifteen years, and the time limits governing referrals have not changed in that time. It is reasonable to expect that trade unions ought to be well aware of the need to act timeously in the interests of its members and would adapt their internal procedures to accommodate those time limits, not vice versa. The scale of an organisation cannot serve as a justification for delays. On the contrary, it is reasonable to expect that larger organisations, be they trade unions or businesses ought to be able to see to it that they are organised to deal with disputes of this nature in a systematic matter to ensure that they do not fall foul of the time limits in the LRA. Where handling such disputes is a core function of the organisation, this should go without saying.” agrangeJ : Nehawu v Vanderbijlpark Society for the Aged (unreported, JS 540/05)

16. Labour Court Processes Longer term solution? A personal view Active case management by judges, allocated cases as and when they are filed; Judges responsible for management to point of resolution and held accountable.