The vexatious litigant and review applications

Feb 26, 2020

Many employers dismiss employees after due process, i.e. dismissals that are procedurally and substantively fair. However, more often than not these days, employers find that employees refer an unfair dismissal dispute to the CCMA (or the appropriate Bargaining Council) regardless, because they can and for no good reason other than hoping to receive some financial compensation. These referrals not only cause annoyance and frustration (vexatious) but also have no serious purpose or value (frivolous).

Unfortunately the CCMA has too accept these referrals as it may not pre-judge the vexatious and frivolous nature of these type of referrals until the case has been heard by the commissioner. Consequently, when the CCMA find the dismissal to be fair, employees now approach the Labour Court in an attempt to review the CCMA’s award in accordance with section 145 of the Labour Relations Act (“the LRA”). Unfortunately, although the purpose and objectives of the LRA seek to promote an effective and efficient dispute resolution process, its easily accessible nature has also led to abuse by vexatious litigants.

Employers are, as a direct result, inundated with vexatious and frivolous claims which only serve to inconvenience them, the CCMA and the Labour Court. The matter is, of course, exacerbated when employees lose steam and litigate at their leisure to the frustration and detriment of both the employer and the Labour Court. The result is that employers are required to oppose these frivolous and ‘hopeless’ cases for years on end without resolution whilst incurring substantial legal costs. Additionally, the CCMA and the Labour Court are struggling to discharge their statutory obligations of providing swift justice to those with legitimate claims as valuable time and resources are wasted with little or no consequence for the vexatious litigants.

Review applications are by their very nature urgent and must be treated as such. This is fortified by the provisions of the Labour Court Practice Manual which unequivocally states that if all papers in the review application are not filed within 12 months of the date of launching the proceeding, the application is archived. Although the Practice Manual suggests that files would be archived as a matter of course, this process often requires an application to the Registrar. Fortunately, upon the archiving of a review application, the Labour Court is stripped of its jurisdiction to consider the review application in the absence of a substantive application for retrieval. The effect of a file being archived is accordingly the same as the application having been dismissed and any application for the retrieval from the archives is met with onerous requirements which are seldom met.

In the recent case of Petro Chem Technical Service (Pty) Ltd v Mapuma [2019] ZALCJHB 310 (14 November 2019) the Labour Court dealt with the dilatory prosecution of a review application. The Court confirmed that it may act in any manner which it considers to be expeditious in the circumstances to achieve the objectives of the LRA and that good cause must be shown in order to retrieve a matter from the archive. The Court reiterated that the provisions of the Practice Manual are binding on litigants and are not to be used as a mere guideline.

Employers are accordingly not without remedies and should, in conjunction with their legal representatives, take the necessary steps in order ensure that the matter has indeed been archived by the Labour Court in accordance with the relevant provisions of the Practice Manual. In circumstances where the vexatious litigants, true to their nature, seek to bring an application for retrieval, such applications should be vigorously opposed and an Order for punitive costs should be sought.  

Author:

Wallace Albertyn

Wallace Albertyn is a Senior Associate and Legal Advisor at LabourMan Consultants.

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