Steenkamp v Edcon Limited

Edcon Limited employed approximately 40,000 staff. Between 2013-2015, it retrenched about 3,000 employees for operational requirements. The 1818 applicants formed part of this group. Section 189A of the LRA applied due to the large scale of retrenchments. No facilitator was appointed during the consultation process. Edcon issued dismissal notices before the statutory 30-day period prescribed in section 189A(8) had lapsed. Instead of using the section 189A(13) procedure or referring unfair dismissal claims to the CCMA, the applicants challenged the validity of their dismissals on the basis that Edcon's non-compliance with notice periods rendered the dismissals invalid (the "De Beers principle"). The Labour Appeal Court rejected this approach. This Court in Steenkamp I agreed that the dismissals were not invalid. After the Steenkamp I judgment, the applicants launched section 189A(13) applications claiming compensation for procedural unfairness, but these were brought 10 months to 2.5 years late. They applied for condonation of the delay.

• Whether the Labour Appeal Court was correct to overturn the Labour Court's grant of condonation for the late referral of section 189A(13) applications
• What factors should be considered when granting condonation for late referrals in large-scale retrenchment cases
• Whether pursuing an unsuccessful legal strategy constitutes good cause for condonation
• Whether compensation under section 189A(13)(d) is a stand-alone remedy
• The nature and purpose of section 189A(13) procedures
• The standard for appellate interference with a lower court's exercise of discretion to grant condonation

1. Leave to appeal is granted. 2. The appeal is dismissed. 3. There is no order as to costs.

1. Section 189A(13) of the LRA is designed for urgent, expeditious intervention to correct procedural flaws during or shortly after the consultation process, not for claims brought years after dismissals. 2. Compensation under section 189A(13)(d) is not a stand-alone remedy; it is conditional and only available where remedies in paragraphs (a)-(c) are not appropriate. 3. A failed legal strategy alone does not constitute sufficient cause for condonation of substantial delays, particularly where the alternative remedy was always available but deliberately not pursued. 4. Where a cause of action is based on breach of an LRA obligation, the remedy must be sought within the LRA framework, not through common law remedies. 5. An appellate court may interfere with a lower court's exercise of discretion to grant condonation where that discretion was not exercised judicially, was influenced by wrong principles, or resulted in a decision that could not reasonably have been made by a court properly directing itself. 6. Even relatively short delays (e.g., five months) may be too long in the context of section 189A(13) given its urgent and remedial nature.

The Court noted that this was a sequel to protracted litigation and that the applicants had been "undeterred" by their setback in Steenkamp I, suggesting some judicial disapproval of the litigation strategy. The Court observed that labour matters require expeditious resolution because delays are "detrimental not only to the workers who may be without a source of income pending the resolution of the dispute but, ultimately, also to an employer who may have to reinstate workers after many years." The judgment emphasized that the Labour Court should act as "guardian of the process" and exercise "judicial management" over large-scale retrenchment consultations. The Court noted that Edcon's counsel made a concession regarding postponement of paragraph (d) compensation that the Court did not accept as correct. The Court remarked that the applicants regarded their De Beers strategy as a "slam dunk with no fall-back position," suggesting criticism of overconfident litigation tactics. The Court stated that disputes about procedural fairness have been removed from the ex post facto jurisdictional competence of the Labour Court, representing a clear policy decision by the legislature.

This case is significant for clarifying: (1) the urgent and expeditious nature of section 189A(13) procedures in large-scale retrenchments; (2) that compensation under section 189A(13)(d) is not a stand-alone remedy but conditional on the inappropriateness of other remedies; (3) that merely pursuing an unsuccessful legal strategy does not automatically justify condonation of substantial delays; (4) that the LRA's dispute resolution mechanisms must be used for LRA breaches rather than resorting to common law remedies; (5) the proper standard for appellate interference with discretionary decisions on condonation; and (6) the importance of expeditious resolution of labour disputes, particularly in retrenchment contexts. The judgment reinforces that section 189A(13) is designed for the Labour Court to act as "guardian of the process" to correct procedural flaws while the consultation process is ongoing or shortly thereafter, not years later. It emphasizes the policy imperative for swift resolution of large-scale retrenchment disputes.