Olivia Kock v Commission for Conciliation, Mediation and Arbitration and Others

Olivia Kock (the applicant), a qualified attorney, was employed by Hellpage Southern Africa (Fifth Respondent) from 18 August 2016 as a regional program manager on a fixed term contract due to end on 17 July 2018. She was dismissed on 3 March 2017 during her probation period for performance issues. She referred an unfair dismissal dispute to the CCMA on 22 March 2017. Conciliation failed on 19 April 2017. Arbitration proceedings commenced before Commissioner Jansen Van Vuuren on 14 July 2017, who granted legal representation to the employer. The matter was then set down before the Second Respondent (a senior commissioner) on 4 September 2017. After extensive proceedings marked by difficulties with the applicant's conduct and cross-examination style, the Second Respondent recused herself on 29 November 2017. The matter then proceeded de novo before the Third Respondent on the same day with the applicant's agreement. The applicant elected not to testify or call witnesses. On 10 February 2018, the Third Respondent issued an award finding the dismissal fair. The applicant received the award on 13 February 2018 and filed a review application on 23 April 2018 (four weeks late). The applicant failed to properly apply for condonation, failed to file a complete record within prescribed time limits, and failed to comply with multiple provisions of the Practice Manual.

• Whether the review application was brought within the six-week time limit prescribed by section 145(1) of the LRA
• Whether a proper application for condonation was made for the late filing of the review application
• Whether good cause was shown for condonation
• Whether the applicant complied with clauses 11.2.2, 11.2.3 and 11.2.7 of the Practice Manual regarding filing of the record and prosecution of the review
• Whether the Labour Court had jurisdiction to entertain the review application given the procedural failures
• Whether the applicant's reinstatement application was competent and properly brought
• Whether the Rule 11 application for dismissal of the review was competent
• Whether costs should be awarded against the applicant

1. The fifth respondent's application in terms of Rule 11 of the Labour Court Rules is granted. 2. The applicant's review application is dismissed for want of jurisdiction of the Labour Court to consider the application. 3. There is no order as to costs.

A review application brought outside the six-week time limit prescribed by section 145(1) of the LRA requires a proper application for condonation brought on notice of motion. Mere reference to condonation in a founding affidavit is insufficient. Where an applicant fails to file the record of proceedings within 60 days as required by clause 11.2.2 of the Practice Manual, the review application is deemed withdrawn in terms of clause 11.2.3 unless the applicant has during that period requested and obtained the respondent's consent for an extension, or failing consent, obtained a directive from the Judge President. An application for extension of time to file the record brought after the 60-day deadline has expired is not competent - by that time the review has already been deemed withdrawn and only reinstatement is available. A reinstatement application brought before the record has actually been filed is premature and irregular because condonation can only be sought for an act already done, not for future delays that cannot yet be explained. Where an applicant fails to file all necessary papers (including a complete record) within 12 months of filing the review as required by clause 11.2.7 of the Practice Manual, the application is archived and regarded as lapsed. Where a review application has been deemed withdrawn, archived or lapsed, it remains in that status unless and until the applicant succeeds in an application to reinstate it. The Labour Court has no jurisdiction to entertain a review application that has been deemed withdrawn, archived or lapsed without proper reinstatement. A Rule 11 application for dismissal of a review is competent where the review has lapsed due to non-compliance with procedural requirements.

The Court observed that challenging a commissioner's decision to recuse herself is futile where the matter subsequently proceeded de novo before a different commissioner with the applicant's agreement. The Court noted that a qualified attorney conducting her own case should be held to a higher standard of compliance with court rules and procedures. The Court emphasized the principle that review applications are by nature urgent and must be prosecuted with expedition, not returned to "from time to time when [the applicant] or his representatives chose to do so." The Court commented that the applicant's conduct throughout was indicative of a litigant who "remained inactive for lengthy periods, acted when it suited her and how it suited her, with complete impunity where it comes to the LRA, the Rules of Court, the Practice Manual and the interests of the other party." The Court noted that even if the applicant might have an arguable case on the merits, granting the application would "subvert a crucial principle in matters which deal with personal relationships, namely labour relations, that these disputes have to be dealt with expeditiously and finalized as quickly as possible." The Court declined to award costs despite the applicant's unacceptable conduct, applying the principle in Zungu v Premier of KZN that costs orders in labour matters require consideration of fairness and the parties' conduct, with the applicant's personal circumstances (unemployment) weighing against a costs order.

This case provides important guidance on the strict compliance required with time limits and procedural requirements in labour review applications. It emphasizes that: (1) condonation applications must be properly brought on notice of motion, not merely mentioned in an affidavit; (2) lack of funds alone is generally not a sufficient explanation for delay in prosecuting labour matters; (3) compliance with the Practice Manual provisions (particularly clauses 11.2.2, 11.2.3, and 11.2.7) is mandatory and failure results in deemed withdrawal, archiving, or lapsing of the review; (4) reinstatement applications are essentially condonation applications requiring good cause to be shown; (5) a reinstatement application brought before the record is filed is premature; (6) applicants must first seek consent from respondents before approaching the Judge President for extensions; (7) the Court has no jurisdiction to entertain a review application that has lapsed or been deemed withdrawn without proper reinstatement; (8) the requirement of expedition in labour matters is paramount; and (9) Courts cannot assist litigants who fail to comply with procedural requirements and make no genuine attempt to regularize their position. The case demonstrates the consequences of casual and dilatory prosecution of review applications.