National Health Education and Allied Workers Union and Another v Commissioner Bongani Mtati, Mthatha Private Hospital (Crossmed Health) and the Commission for Conciliation, Mediation and Arbitration
Labour Court of South Africa, Durban; Case No D131/2023; judgment delivered 31 July 2025
Although the judgment is marked “Not Reportable”, it clarifies the procedural interplay between a late-filed review under section 145 of the Labour Relations Act 66 of 1995, an unopposed roll enrolment, and an employer’s subsequent attempt to oppose after the matter has already been set down. The judgment is significant because it re-emphasises the primacy of reinstatement under section 193 of the Act, and it illustrates the approach to condonation where there is a relatively short delay accompanied by plausible explanations and an absence of demonstrable prejudice. For practitioners, the ruling provides useful guidance on how the Labour Court will treat belated opposition and how it will weigh prospects of success when the underlying attack concerns the arbitrator’s failure to award reinstatement.
The court relied on Booi v Amathole District Municipality and Others (2022) 43 ILJ 91 (Constitutional Court), which reinforced that reinstatement is the primary remedy where a dismissal is found to be substantively unfair unless one or more of the limitations in section 193(2) of the Labour Relations Act apply.
The Labour Relations Act 66 of 1995, specifically sections 145(1)(a) dealing with the six-week review period and sections 193(1) and 193(2) prescribing the remedies available once an unfair dismissal is established, constitutes the principal legislative framework referenced in the judgment.
Rule 7A(8) of the Labour Court Rules is cited in relation to the filing of the record and the procedural steps required before a review application may be enrolled.
The applicants, the National Health Education and Allied Workers Union and Ms Lulama Ncanywa, sought to review an arbitration award in which Commissioner Mtati found Ms Ncanywa’s dismissal to be unfair but awarded compensation instead of the reinstatement she had explicitly requested. Because the review was launched outside the six-week period prescribed by section 145(1)(a) of the Labour Relations Act, the union sought condonation. Although the matter was initially enrolled on the unopposed roll, the employer, Mthatha Private Hospital, belatedly indicated an intention to oppose but failed to comply with the court-ordered timetable. The court therefore heard the matter in the employer’s absence and considered both condonation and the review on the merits.
The principal issues were whether condonation should be granted for the five-week delay in launching the review and whether the arbitrator committed a reviewable irregularity by awarding compensation when reinstatement was the primary remedy sought.
The Labour Court granted condonation, finding the delay short, the explanation largely adequate, and the employer unable to show prejudice. On the merits, the court held that the arbitrator acted unreasonably by failing to apply the statutory presumption in favour of reinstatement and by awarding relief not requested by the employee without identifying any of the section 193(2) exceptions. The award was therefore reviewed and set aside, and the matter was remitted for the arbitrator to determine appropriate relief in line with section 193.
Ms Ncanywa was employed as a general worker by Mthatha Private Hospital from 1 April 2019 until her dismissal on 1 September 2022. The employer justified the dismissal on operational-requirements grounds but failed to consult her adequately or follow a retrenchment procedure.
Commissioner Mtati found the dismissal unfair on 22 December 2022. Despite Ms Ncanywa’s plea for retrospective reinstatement, he awarded five months’ compensation amounting to R 20 871. The award reached the union the next day, when its offices were closing for the festive break.
After reopening on 10 January 2023, the union tried to secure a variation of the award, but the arbitrator declined condonation for that application on 7 February 2023. The union then turned to the Labour Court, ultimately filing the review on 13 March 2023—five weeks out of time. A record was filed in August 2023, a supplementary affidavit in September 2023, and, with no opposition, the matter was set down as unopposed. The hospital appointed attorneys only after receiving the notice of set-down and failed to file the required papers, leading to the hearing proceeding in its absence on 14 March 2025.
The court had to decide, first, whether the five-week delay warranted condonation under the established test of length of delay, explanation, prospects of success, and prejudice. Secondly, it had to determine whether the arbitrator’s choice of compensation over reinstatement constituted a reviewable irregularity because it ignored the hierarchy of remedies in section 193 of the Labour Relations Act and the employee’s stated preference.
In a three-stage analysis the court began by measuring the delay. Five weeks, it held, is not excessive. The union’s explanation, while incomplete regarding the interval between requesting a case number and actually filing, was adequate when viewed against the union’s diligent steps thereafter. The employer presented no evidence of prejudice, and prospects of success were materially strong because the arbitrator appeared to have misconstrued section 193.
Turning to the merits, the court reiterated the Constitutional Court’s articulation in Booi that reinstatement is the primary remedy once substantive unfairness is found. An arbitrator may deviate only if one of the four exceptions in section 193(2) is established. Commissioner Mtati’s award failed to identify any such exception and in fact mischaracterised the employee’s request, believing she preferred compensation. This fundamental misdirection rendered the award unreasonable in the Sidumo sense and susceptible to review.
Finally, the judge considered whether to substitute a remedy or remit the dispute. Given the absence of the employer’s input at the hearing and the incomplete record on operational viability, the court elected to remit the matter for a fresh determination of appropriate relief by a new commissioner, explicitly directing that the principles in section 193 be applied.
Condonation for the late filing of the review was granted. The arbitration award of 22 December 2022 was reviewed and set aside. The dispute was remitted to the Commission for Conciliation, Mediation and Arbitration for rehearing before a different commissioner to determine the appropriate remedy with due regard to section 193 of the Labour Relations Act.
The judgment reaffirms that reinstatement is the default remedy for substantively unfair dismissals, departing from it only where one of the four express grounds in section 193(2) is proven. It emphasises that an arbitrator exceeds their powers by awarding compensation without considering those statutory prerequisites or by misapprehending the remedy sought by the employee.
On condonation, the judgment underscores that a short delay coupled with a reasonable explanation, strong merits and an absence of prejudice will normally justify an indulgence, even where part of the delay remains unexplained. The case also illustrates that once a matter is properly enrolled, late opposition unsupported by procedural compliance will not automatically derail a review or prevent the court from proceeding in the defaulting party’s absence.