Initially I was confused: how could SA’s highest labour court decide that subordinate agreements trumped the crucial Labour Relations Act (LRA)?

Read the judgment

The man who tested this issue, Leon Appels, is a teacher in Klerksdorp. During 2016 he applied for the position of principal at his school. When he was not appointed, he raised a grievance, and when that was not resolved, he referred his dispute to the Education Labour Relations Council (ELRC).

The LRA says that if an employee wants to refer an alleged unfair labour practice for consideration, it must be done within 90 days of the date on which the employee became aware of the event complained about.

When Appels referred his dispute to the ELRC he did so on about the 82nd day. Though it sounds as though he filed in good time, there was a problem. The ELRC’s constitution says a dispute involving promotions must be referred within 30 days from the date on which the employee became aware of the final decision.

Which deadline applied? The ELRC said all was not lost and that Appels should apply for condonation of the late referral of his dispute. Appels refused, saying he met the LRA deadlines and needed no condonation. He also asked the labour court for an order declaring that the ELRC’s 30-day deadline was of no force because it conflicted with the LRA’s 90 days. He argued that the ELRC’s rules ‘cannot vary the timeframe’ of the LRA.

Labour court judge Andre van Niekerk disagreed with that argument. He said the LRA allowed binding collective agreements and that the ELRC’s time limits applied to Appels. Bargaining councils like the ELRC had to act within the confines of the empowering legislation (the LRA), but there was nothing in the LRA stipulating that the bargaining council could not deviate from the timeframe of the LRA.

Appels tried again, this time asking the labour appeal court for its view.

The ELRC argued that a bargaining council could establish its own dispute resolution procedures, including its own deadlines, and that a ‘distinction should be drawn between a right and a procedure to enforce that right’. Where the LRA prescribed a time frame this related to ‘procedure’ and not to the substantive right to have the matter heard.

The appeal court agreed and accepted the reasons behind the ELRC’s 30-day deadline. It was in the best interests of learners that disputes about promotion be resolved as quickly as possible. A promotion dispute meant there was a vacancy that had to be filled. For the person who got the job there was a change in salary and relocation was often involved. If a dispute were successful it would mean reversals of all these things with serious consequences for everyone concerned including the learners.

The judges said it was true that subordinate legislation like the council’s rules was ‘always subject to the empowering legislation’, here the LRA, and the subordinate legislation could not take away any rights in the empowering law. Here, however, that ‘right’ was the right not ‘to be a victim of unfair labour practice’. The process was a different issue. If the council had not laid down its own rules then the 90 days of the LRA would apply. Shortening the deadline to speed up resolution of promotion disputes did not take away the core right of Appels or someone in a similar position to be heard.

So now I get it; I hope Appels, along with other employees and employers whose bargaining councils have their own procedural rules, does too. And Appels’s promotion dispute might yet be heard: dismissal of his appeal means the original judgment – giving him 14 days to apply for late condonation – still stands.

  • Financial Mail, 1 August 2019