Unilever Field Services (A Division of Smollan Group Ltd) v Shibambu and Others

The applicant sought to review an arbitration award issued by the CCMA on 20 November 2012, which found the dismissal of the first respondent to be substantively unfair and ordered reinstatement with backpay and a final written warning. The review application was filed on 9 January 2013. The CCMA dispatched the record on 31 January 2013. The applicant's attorney attempted to uplift the record in February 2013 but it was only available on 19 March 2013, and then was discovered to be incomplete (containing only one witness's evidence). The applicant wrote to the Judge President on 11 November 2013 seeking direction. A notice in terms of Rule 7A(8)(a) was only filed on 25 September 2014. The first respondent obtained an order making the arbitration award an order of court in 2017, which was later rescinded in 2020. The incomplete record and commissioner's notes were filed on 7 September 2021. The matter was scheduled for hearing on 31 May 2023 but did not proceed, and was then set down for 13 November 2024.

• Whether the Labour Court Practice Manual applies to review applications filed before the Manual came into operation on 2 April 2013
• Whether the provisions of the Practice Manual dealing with archiving of files are binding on litigants
• Whether the review application should be deemed withdrawn for failure to comply with the Practice Manual's requirement to file all necessary papers within 12 months
• Whether the Labour Court has jurisdiction to entertain the review application where the matter has been archived

The review application was deemed to have been withdrawn. There was no order as to costs as the matter was unopposed.

The provisions of the Labour Court Practice Manual are binding on litigants and apply to review applications that were pending when it came into operation on 2 April 2013. Where an applicant in a review application fails to file all necessary papers within 12 months of launching the application as required by item 11.2.7 of the Practice Manual, the application will be archived and regarded as lapsed. The Labour Court lacks jurisdiction to entertain a review application that has been archived and deemed lapsed unless the applicant first brings an application for reinstatement showing good cause. The Practice Manual gives effect to the Labour Relations Act's object of expeditious dispute resolution and its provisions must be complied with to avoid deemed withdrawal of applications.

The court observed that even if it wanted to ensure the matter was finally disposed of, it was constrained from doing so due to the incomplete record of arbitration and the fact that the review application was deemed withdrawn. The court noted that while the Practice Manual calls for flexibility and is not intended to limit judicial discretion, these principles could not assist the applicant in the circumstances. The court also commented that failure to keep a proper record of arbitration proceedings is a reviewable irregularity, but this ground had not been raised by the applicant. The court expressed that it was not clear why the applicant did not invoke the mechanisms provided in the Rules and Practice Manual to ensure timely finalization, particularly Rules 7A(3) and 7A(4) regarding filing of the record by the CCMA.

This case reinforces the binding nature of the Labour Court Practice Manual and the strict requirement for applicants to comply with procedural timelines in review applications. It confirms that the Practice Manual applies to matters filed before it came into operation if the proceedings continued after its effective date. The case emphasizes the Labour Court's commitment to the LRA's object of expeditious dispute resolution and demonstrates that failure to prosecute review applications timeously will result in the application being deemed withdrawn, regardless of the merits. It highlights the importance of litigants actively pursuing their matters and utilizing available procedural mechanisms rather than allowing matters to drift for years.