National Education Health and Allied Workers Union (NEHAWU) obo Second to Seventeenth Applicants v Metrofile (Pty) Ltd and Others

Sixteen individual applicants were retrenched and NEHAWU, acting on their behalf, referred an unfair retrenchment dispute to the CCMA on 5 July 2017. The dispute was conciliated on 1 August 2017, and a certificate of outcome indicated the dispute had to be referred to the Labour Court. Despite this, NEHAWU referred the matter to arbitration on 20 September 2017. On 20 November 2017, the CCMA ruled it lacked jurisdiction to arbitrate. NEHAWU's offices closed for Christmas, reopening 10 January 2018. Attorneys were instructed on 23 January 2018 and counsel briefed on 29 January 2018. On 11 April 2018, applicants delivered an invalid application in terms of Rule 7 instead of a statement of claim under Rule 6. The respondent objected on 9 May 2018. A statement of claim was eventually filed on 29 May 2018, 211 days late. NEHAWU then applied for condonation of the late delivery.

• What is the applicable test for condonation of late filing in the Labour Court?
• Whether the applicants provided a reasonable and acceptable explanation for the delay of 211 days
• Whether the court can have regard to prospects of success where there is a flagrant failure to comply with court rules
• Whether the statement of claim can be incorporated by reference into the condonation application
• Whether the prejudice suffered by retrenched employees outweighs other factors in the condonation analysis
• Whether costs should follow the result in labour matters

1. The application for condonation is dismissed. 2. The referral by the applicants of an unfair dismissal dispute is dismissed. 3. There is no order as to costs.

Where there is a flagrant or gross failure to comply with the rules of court in labour matters, condonation may be refused without considering the prospects of success. Without a reasonable and acceptable explanation for delay, prospects of success are immaterial, and without good prospects of success, no matter how good the explanation, condonation should be refused. An applicant for condonation must set out its case, including prospects of success, in the founding affidavit; documents cannot be incorporated by implication merely because a respondent refers to them in an answering affidavit. The prejudice suffered by retrenched employees, while a relevant consideration, does not outweigh the principle of speedy resolution of employment disputes and cannot excuse flagrant non-compliance with procedural requirements.

The court observed that it is a norm of South African society that during mid-December to early January the nation comes to a near halt, and this customary shutdown may excuse some delay in non-urgent matters. The court noted that retrenchment disputes invariably require oral evidence and that anyone with experience in employment disputes would know that Rule 6 (requiring a statement of claim) applies rather than Rule 7. The court also commented that special pleas are destined for separate adjudication and their invalidity has no consequence on the merits of the main case. Regarding costs, the court endorsed the principle that in labour matters, costs orders should strike a fair balance between not unduly discouraging parties from approaching the court while not allowing frivolous cases, and that the norm should be not to award costs unless the requirements of law and fairness are met.

This case reinforces the strict approach courts take to compliance with procedural rules in labour matters, particularly time limits for referrals. It confirms that: (1) flagrant disregard of rules may result in refusal of condonation regardless of merits; (2) trade unions and their legal representatives must exercise due diligence in prosecuting labour disputes timeously; (3) the prejudice suffered by retrenched employees, while significant, cannot override procedural non-compliance; (4) proper foundation must be laid in condonation applications for prospects of success - documents cannot be incorporated by implication; (5) the speedy resolution of employment disputes remains a paramount consideration in South African labour law. The judgment serves as a warning that even sympathetic cases involving retrenched workers will not succeed if basic procedural requirements are not met. It also illustrates the appropriate exercise of discretion regarding costs in labour matters, balancing access to justice against discouraging frivolous litigation.