PTAWU obo Mantshi & 86 Others v Commissioner for Conciliation, Mediation & Arbitration & others

The union (PTAWU) sought to review an arbitration award finding that the dismissal of 87 employees for refusing to work on Saturdays was substantively fair. In August 2014, the parties concluded a settlement agreement at the CCMA providing for wage increases and changing the working week from Sunday-Friday to Monday-Saturday. Despite the agreement, union members refused to work on Saturdays (13, 20 and 27 September 2014), demanding a reversion to the old schedule. After written warnings for the first two Saturdays and advance warning of disciplinary action, employees who failed to report on the third Saturday were dismissed. The arbitration award was handed down on 3 August 2015. The union filed its review application 11 days late on 25 September 2015. The record was available on 11 November 2015 but only transcribed and filed nearly five months later than required, in July 2016. The union blamed lack of funds and alleged the court failed to notify it that the record was available, claiming notice was sent to a wrong fax number.

• Whether condonation should be granted for the late filing of the review application
• Whether condonation should be granted for the late filing of the arbitration record
• Whether the arbitrator's award was reviewable under section 145 of the LRA on grounds of reasonableness or irregularity
• What standard of conduct is expected of unions and employer organisations in Labour Court litigation
• Whether a costs order is warranted in a labour dispute review application

The application for condonation of the late filing of the review application was granted. The application for condonation of the late filing of the record was dismissed. The review application was dismissed on account of the applicant's unreasonable delay in prosecuting the review application. The applicant was ordered to pay half the third respondent's costs of opposing the review application and the condonation applications.

1. Unions and employer organisations who regularly litigate under the LRA are expected to meet a standard higher than laypersons but lower than legal professionals - they must familiarise themselves with court rules, practice manuals, and time limits, and act promptly in prosecuting claims. 2. A review application must properly plead grounds of review in accordance with established jurisprudence; it is not sufficient to list complaints about an arbitrator's findings without demonstrating how the outcome fell outside the band of decisions a reasonable decision-maker could reach. 3. Unreasonable delay in prosecuting a review application, particularly in filing the record, warrants dismissal of the review where there is no adequate explanation for the delay, given the LRA's purpose of expeditious resolution of labour disputes. 4. Additional evidence not before the arbitrator cannot be considered in review proceedings; filing such affidavits is improper and may mislead union members. 5. A costs order may be appropriate in a labour dispute where a party pursues a review with very poor prospects, conducts litigation in a haphazard manner with scant regard for court rules, and makes reckless and serious unsubstantiated allegations of corruption or bias.

The court made several important observations beyond what was strictly necessary for the decision. Lagrange J emphasized that by the time of this judgment, key jurisprudence on review standards should have been fully assimilated by unions and employer organisations. The court noted that even in the absence of textbooks, numerous free online judgments set out key principles applicable to different types of disputes, and the LRA itself provides basic frameworks for fairness. The court also commented on the practice of making allegations of bias, stating that 'allegations of bribery are hard to prove, they should also not be lightly made' and that no court will entertain subjective speculations in place of reasonable apprehension of bias based on evidence. The judgment expressed concern about PTAWU's pattern of freely casting aspersions against various unconnected individuals (the arbitrator in this matter, an arbitrator in a previous dispute, and court staff) in the course of litigation. The court also observed that members of unions are entitled to expect their representatives to have a basic level of competence in litigation matters, and that such matters 'only require some basic time management and case file administration competency: advanced legal skills are not needed.'

This case is significant for establishing standards of conduct expected of unions and employer organisations who regularly litigate in the Labour Court. The court held that while such parties are not held to the same professional standards as attorneys or counsel, they are expected to meet a higher standard than laypersons who do not regularly engage in LRA proceedings. This includes reading and understanding court rules and the practice manual, familiarising themselves with time limits, and acting promptly. The judgment also reinforces the importance of properly pleading grounds of review in accordance with the two-stage test from Sidumo/Herholdt and subsequent jurisprudence. It confirms that review applications are not opportunities to rehash or supplement the case before the arbitrator, and that simply listing complaints does not constitute proper review grounds. The case also addresses when costs orders are appropriate in labour disputes, holding that parties with very poor cases who persist despite poor prospects and put opponents to considerable expense cannot always rely on ongoing relationships and lack of resources to avoid costs consequences. Finally, it demonstrates the court's approach to serious but unsubstantiated allegations of bias or corruption, treating such conduct as vexatious.