Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (CCT 228/14) [2015] ZACC 557 (15 December 2015)

Principle:

Applications for leave to appeal should be dismissed on the basis of excessive delays in bringing the proceedings, aside from any other considerations.

Facts:

An employer failed to report for duty from 28 February to 3 March 2011. He was charged in terms of the Toyota Code with misconduct for being absent from work without leave (AWOL) for four days without advising Toyota of his whereabouts and providing an acceptable reason. The disciplinary hearing was held and the employee was dismissed. He referred an alleged unfair dismissal dispute to the CCMA which held that the dismissal was unwarranted because there was no evidence of habitual absenteeism and no disciplinary record for being AWOL. The arbitrator concluded that the dismissal was substantively unfair and ordered Toyota to reinstate the employee and to pay him six months' salary amounting to R218 400.

Toyota launched a review application in the Labour Court in terms of section 145 of the LRA. The employee sought an order dismissing the review application on the ground of excessive delay in pursuing the review. Notably, this was approximately 22 months after Toyota's review application was lodged in the Labour Court. Toyota submitted that the delays were the result of the difficulties it had reconstructing the record and that it had not abandoned its review. The LC dismissed the review application on the basis of the delay. The LC subsequently dismissed Toyota's application for leave to appeal and so did the Labour Appeal Court.

In the Constitutional Court it was held that the appeal should be dismissed on the basis of the excessive delay alone.

Extract from the judgment:

NKABINDE J (Mogoeng CJ, Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Madlanga J, Matojane AJ, Van der Westhuizen J and Wallis AJ concurring):

[43]   Toyota, as the party seeking review, had an obligation, when it became apparent that there were difficulties with the record, to have initiated steps towards reconstruction. In Lifecare the Labour Appeal Court had occasion to determine how the reconstruction of the record should be undertaken by a party whose obligation it is to do so. The Court said the following:

"A reconstruction of a record (or part thereof) is usually undertaken in the following way. The tribunal (in this case the commissioner) and the representatives . . . come together, bringing their extant notes and such other documentation as may be relevant. They then endeavour, to the best of their ability and recollection to reconstruct as full and accurate a record of the proceedings as the circumstances allow. This is then placed before the relevant court with such reservations as the participants may wish to note. Whether the product of their endeavour is adequate for the purpose of the appeal or review is for the court hearing same to decide, after listening to argument in the event of a dispute as to the accuracy or completeness.

. . .

When it appeared that there were difficulties with regard to the record, it was the obligation of Lifecare, as the reviewing party, to initiate the enquiries and steps which have been set forth in this judgment. It should not have been left to the Labour Court at first instance, and to this Court on appeal, to resolve problems which were other than residual or intractable."

[44]   These remarks apply with equal force here. Moreover, the Labour Court's Practice Manual, although it came into effect in April 2013, enjoined Toyota to approach the Judge President for a direction on the further conduct of the review application, if the record of the proceedings under review had been lost, or if the recording of the proceedings was of poor quality. According to the Practice Manual, the Judge President would then allocate the file to a Judge for a direction, which might include the remission of the matter to the person or body whose award is under review, or where practicable, a direction to the effect that the relevant parts of the record be reconstructed. Whilst the Practice Manual came into effect part-way through the litigation, Toyota failed to make use of it. By April 2013, anyway, Toyota had proposed a hearing de novo and held the view that the reconstructed record, as it was, was not sufficient to pursue the review application.

[45]   Excessive delays in litigation may induce a reasonable belief, especially on the part of a successful litigant, that the order or award had become unassailable. This is so all the more in labour disputes. Mr Makhotla was entitled to approach the Labour Court for the relief he sought in order to have closure and get on with his life.

[46]   Toyota failed to discharge its obligation as envisaged by the Labour Appeal Court in Lifecare and by the LRA. The Labour Court cannot thus be faulted for having dismissed the review application on the basis of the inordinate delay, some part of which is not reasonably explained and another part wholly unexplained. The Court, enjoined under rule 11, acted in a manner it considered expedient in the circumstances to achieve the object of the LRA. To criticise it and grant leave to appeal as my colleague, Zondo J does, especially in the circumstances of this case, would not only undermine the object of the LRA regarding the expeditious and effective resolution of labour disputes, but would also not be in the interests of justice.

[47]   The application for leave to appeal should thus be dismissed on the basis of the excessive delay, alone.