Failure To Prosecute Reviews Timeously

Aug 7, 2017


Toyota SA Motors (Pty) Ltd v CCMA & others [2015] ZACC 40


Toyota SA Motors (Pty) Ltd (“Toyota”) employed Makoma Makhotla  in 2006. Makhotla failed to report for duty from 28 February to 3 March 2011. When it became evident that Makhotla would be unable to report for duty, he unsuccessfully attempted to locate his supervisor, Ms. Mukhavhuli, on her mobile phone. Furthermore, he contacted one of the senior managers within his division, Mr. Hawkins, and reported to him. He also sent a short message service (SMS) to Mukhavhuli, indicating that it would take him three days to address the issue that caused his absence from work.

When Makhotla returned to work on 4 March 2011, he was served with a notice to attend a disciplinary enquiry. Three days later, on 7 March 2011, Makhotla tendered a notice of resignation with effect from 31 March 2011. He was informed that despite his resignation he would be disciplined. Human Resources refused to accept the resignation. Makhotla was charged for being absent from work without leave for four days without advising Toyota of his whereabouts and providing an acceptable reason. The disciplinary hearing was held on 24 March 2011 and Makhotla was dismissed on that date.

The Commission for Conciliation, Mediation and Arbitration (“CCMA”) reinstated Makhotla with back-pay of six months’ lost wages.

Toyota applied to review the arbitration award in the Labour Court (“LC”) in 2011. This application was lodged within the six weeks period required by the Labour Relations Act 66 of 1995 (“LRA”).

In 2013 Makhotla and his union, the Retail and Allied Workers Union (“RAWU”), applied to the LC to dismiss the review application because of the prolonged delay. Notably, this was approximately twenty two months after Toyota’s review application was lodged in the LC.

The LC dismissed Toyota’s application on the grounds of undue delay. Furthermore, in 2011 the LC disallowed Toyota’s application for leave to appeal to the Labour Appeal Court (“LAC”). The LAC also refused Toyota’s application for the leave to appeal.

Consequent to the above, Toyota sought leave to appeal in the Constitutional Court (“CC”) against the LC’s judgment, suggesting that the LC had erred as Toyota found it difficult to reconstruct the missing record of the arbitration proceedings.

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Failure To Prosecute Reviews Timeously