Labour court throws out late review application for lack of jurisdiction

Failure by SAPS to timeously file a review application against a bargaining council’s decision which reinstated a policeman dismissed for sexual harassment in 2018 has led to the labour court dismissing the application. 

The court said it did not have jurisdiction to hear the application because the South African Police Service's explanation on why it took nine weeks to make the decision to review the arbitrator’s award was not satisfactory. 

The Labour Relations Act (LRA) states that any party who alleges a defect in arbitration proceedings may apply to the court for an order setting aside the award within six weeks of the date when the award was served.

Capt Peter Arthur Jacks, who was employed by SAPS since January 4 1991, was dismissed in July 2018 for misconduct relating to sexual harassment of a woman captain.

A month later, Jacks referred an unfair dismissal dispute to the safety and security sectoral bargaining council.  

On December 3 2020, the arbitration was set down for hearing for the third time after two postponements.

The police’s representative, Capt Theo Kruger, failed to arrive at the arbitration hearing due to him being double booked for the day. Kruger had contacted the commissioner the previous day seeking the matter to stand down until 11am the next day. 

During the arbitration on December 3, Kruger called in and made an application for a postponement. However, the commissioner exercised her discretion and refused to grant the police service a postponement and proceeded with the arbitration. 

In March 2021, the commissioner issued her award and found the dismissal of Jacks substantively unfair. She ordered the SAPS to reinstate him retrospectively and that Jacks be paid R356,379 in back pay.  

SAPS was unhappy with the commissioner’s decision and launched the review application. However, the court said SAPS filed its review application outside the six weeks period allowed in the LRA. 

As a result, SAPS sought condonation for the late delivery and filing of its application. The LRA empowers the court to grant condonation for the late filing of a review application upon good cause shown. 

However, the court refused condonation in a judgment passed earlier this month. This means the court lacks jurisdiction to determine the merits of the review application. 

Acting judge Liziwe Dzai said it was common cause that SAPS received the award on March 9 2021.  

“[SAPS’] review application ought to have been filed on or before April 20 2021, but was filed five weeks and one day later on May 27 2021,” Dzai said. 

Kruger received the award on March 9 2021.

“He understood the prescribed six weeks period for the filing of the review application would expire on April 20 2021.”

Dzai said despite this knowledge, Kruger failed to provide reasons why it took him three weeks, from March 9 to 31 2021, to draft a note summarising the issues and motivation for the award to be taken on review.

Kruger represented SAPS at the arbitration proceedings and was aware as early as December 3 2020 that the commissioner dismissed his application for a postponement and proceeded with the arbitration in his absence, Dzai said.

The court, which has a heavy workload, has been harsh in dismissing cases with an excessive delay in launching review applications and no reasonable explanation for the delays, as seen in some court judgments this year.

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