14/06/2017
Section 159 of the Labour Relations
Act, 66 of 1995 makes provision
for the establishment of a Rules
Board.
By: Jan Norval
The Board is vested with the power
to make rules regulating the conduct of
proceedings in the Labour Court. The first
rules board for the Labour Court was established
in 1996, and the Rules for the
Labour Court were promulgated during
October of the same year. The Rules of the
Labour Court form an essential part of its
functioning, as they constitute a refinement
of the legal process, provide guidance to
practitioners has to how to conduct litigation
and promote the speedy resolution of
disputes. Given the changing circumstances
in which the Labour Court functions it is
important that the Rules be amended or
supplemented to meet these new circumstances.
This has not occurred. The last
amendment to the Rules was promulgated
in August 2001. For over fifteen years, the
rules have not been amended or updated.
The lack of up to date rules in the Labour
Court has meant that the Court has struggled
to keep up to date with amendments
to the LRA, particularly the latest round of
amendments which includes the right of
appeal to the Labour Court from discrimination
arbitrations.
Due to the inability of the Labour Court
Rules to keep pace with developments in
labour law, a Practice Manual was compiled
by the Court. It came into force during
April 2013, with its primary purpose
being to assist in case management. The
Practice Manual states that it does not supersede
the Labour Court Rules, but rather
is there to assist in the interpretation of the
Rules. The introduction also states that the
Practice Manual does not bind judges;
however should a litigant not comply with
the Practice Manual, an appropriate cost
order can be made against that litigant.
Decisions of the Labour Court have, however,
dealt with the legal status of the Practice
Manual and emphasised the importance
of adhering to its provisions. A
few instances of where the importance of
adherence to the Practice Manual has been
highlighted are discussed below.
Failure to file a record within 60
days
Rule 7A of the Rules of the Labour Court
regulates the procedure to be followed if a
person wishes to approach the Labour
Court to review and set aside an award of a
CCMA arbitrator. Rule 7A(5) states that
the Registrar of the Labour Court must
make available to the applicant seeking to
review the award the record of the arbitration
proceedings. If the arbitration proceedings
have been recorded these recordings
constitute the record of the proceedings.
The applicant must transcribe the records
and provide a copy of this transcript
to the Registrar. This requirements often
results in delays in finalising the review
process.
In order to spur applicants on to deal with
this requirement speedily, clause 11.2.3 of
the Practice Manual provides that an applicant
is deemed to have withdrawn its review
application if the transcribed record
of the arbitration is not filed within sixty
days of the audio record becoming available
to the applicant. Further, should all the
necessary documents in the review application
not be filed within twelve months,
the review application will be archived.
The decision in MJRM Transport Services
CC v CCMA & others (JR 1171/14
20/09/2016) sets out the Labour Court’s
view on this aspect of the Practice Manual.
In this case MRJM filed the transcribed
record eight days late, and applied for condonation.
The respondent employee argued
that condonation could not be granted because,
in terms of the Practice Manual,
MJRM had already been deemed to have
withdrawn the review application.
The Court ruled that, in the normal course,
if an applicant files the transcribed record
outside the sixty day period, the matter
would be struck from the roll in order to
give the applicant an opportunity to apply
for condonation for the late filing and to
apply to have the review reinstated. In this
case, MJRM had applied for condonation
and was granted the condonation. However,
the Court held that the matter will continue
to be deemed as withdrawn until condonation
is granted.
Regarding the status of the Practice Manual,
the Labour Court held that the purpose
of the Practice Manual is to fill gaps that
were not adequately catered for in the
Rules and that the provisions of the Practice
Manual must be applied with flexibility,
but that litigants are still bound by the
provisions of the Practice Manual.
What must be taken from this judgment is
that, while the Practice Manual creates a
situation where the review application is
deemed to be withdrawn, this does not
mean that the review application can be
considered as being dismissed; the opportunity
to apply for condonation and the revival
of the matter still remains. Further,
that adherence to the Practice Manual is
expected from litigants.
Another recent Labour Court decision also
dealt with the Practice Manual and the failure
to file the transcribed record within the
sixty day period. In SAMWU obo Nomava
Mlalandle v SALGBC & others (PR115/15
02/11/2016) SAMWU was three months
late in filing the transcribed record. The
Nelson Mandela Bay Metropolitan Municipality,
a Respondent, argued that because
the review application was deemed to have
been withdrawn, the Labour Court could
not even consider an application for condonation.
The Labour Court followed its approach
in MJRM Transport that a condonation
application may be brought, and held
that the deemed withdrawal would not be a
bar to bring a condonation application.
However, in the absence of a condonation
application and/or an application to reinstate,
it would be a “big ask” for the Labour
Court to exercise its discretion in
such a situation and “willy-nilly” grant an
extension.
In short, therefore, if a litigant does not
meet the requirement of filing a transcribed
record within sixty days, then the litigant
will be deemed to have withdrawn its review
application and will have to bring a
condonation application along with an application
for revival. The above cases also
indicate that the Labour Court requires
strict adherence to the Practice Manual,
and that non-adherence requires condonation
just as it would in the case of with non
-compliance with the Rules.
Incomplete record
Another area of the Practice Manual which
has been the source of litigation, has been
the clause dealing with incomplete records.
Clause 11.2.4 states that if the audio
record of an arbitration is of such a poor
quality that it cannot be transcribed, the
applicant may approach the Judge President
of the Labour Court to give direction
on how to proceed with the review, which
may include that the record be reconstructed
or that the matter be remitted back for
arbitration afresh. The Judge President
therefore, in terms of the Practice Manual,
has some discretion on how to deal with
the matter, although reconstruction and
remittance seem to be the primary options
available. Nonetheless, there have been
differing decisions which have led to some
uncertainty on how to deal with incomplete
records.
In Boale v National Prosecuting Authority
(2003) 24 ILJ 1666 (LC) the Labour
Court held that a review may be dismissed
where the record is incomplete because the
Applicant did not provide a full transcript
of the arbitration proceedings. An exception
to dismissal was when “the tape cassettes
are missing or where the parties are
unable to reconstruct the record”. InNathaniel
v Northern Cleaners Kya Sands
(Pty) Ltd and Others (2004) 25 ILJ 1286
(LC) the Court used this exception when it
refused to set aside a review application
where the parties had gone to great lengths
to reconstruct the record, but were unable
to do so, relying instead on what had been
reconstructed, the documents from the arbitration
and the arbitration award itself.
However, in other cases such as Balasana
v Motor Bargaining Council and Others
(2011) 32 ILJ 297 (LC) the Labour Court
has held that the failure to provide a complete
record, which is due to the fault of
the Commissioner not properly recording
proceedings, and where reconstruction is
futile, the review should be remitted to the
CCMA for a fresh hearing. There are thus
approaches favouring remittance and others
which do not.
The Constitutional Court in Toyota SA
Motors (Pty) Ltd v CCMA & others
(CCT228/14 15/12/2015) stated that the
issue of missing and incomplete records of
arbitrations was a long-standing issue in
review applications. Although the Constitutional
Court noted the differing case law
on the matter, it did not make a decision
on what the correct approach would be.
The Constitutional Court did seem to favour
the remittance of the matter to the
CCMA using the Balasana approach.
Regardless, the approach in the Practice
Manual still stands, and the Judge Oresident
will have a discretion on how to deal
with matters in which the audio recording
are incomplete including whether reconstruction
or remittance will be resorted to.
It does, however, seem that, should the
fault for the audio recording being incomplete
lie with the Commissioner, it is likely that the matter will be remitted. This is
once again indicative of the Labour
Court’s use of the Practice Manual as if it
had the status of a Rule, on a subject on
which the Rules are silent; this seems to
have approval of the Constitutional Court.
Application of the Practice Manual
to cases prior to 2 April 2013
The Labour Court last year embarked upon
a process of pre-enrolment hearings,
during which matters may be allocated a
date for a hearing; but during which any
preliminary matters or case management
issues would also be dealt with before the
matter is allocated a date.
At these hearings, in order to explain away
any non-adherence to the Practice Manual,
litigants would argue that because their
matter commenced prior to 2 April 2013,
the Practice Manual would not be applicable
to their case, and thus there could be
no consequence for non-adherence. These
arguments were not dealt with favourably
at pre-enrolment hearings. It was ruled on
a number of occasions that, despite the
matter commencing after 2 April 2013, the
matter would have to be dealt with in accordance
with the Practice Manual from 2
April 2013 onwards.
This attitude reflected in pre-enrolment
hearings was also echoed by the Constitutional
Court in Toyota, where it was indicated,
although not expressly stated so,
that even if the Practice Manual came into
effect part-way through litigation, Toyota
would be expected to adhere to it. This
also reflects the importance the Labour
Court has placed on adherence to the Practice
Manual.
Comment
The above are just a few instances of
where the Labour Court has placed heavy
emphasis on litigants adhering to the Practice
Manual, and that even though the
Practice Manual is not binding on the Labour
Court, litigants are expected to adhere
to the Practice Manual. As with the
Rules, should there be non-adherence to
the Practice Manual, a condonation application
will have to be brought or good
cause shown why the Labour Court must
exercise flexibility in the application of the
Practice Manual. The attitude that the Labour
Court has adopted to the Practice
Manual and the importance placed upon it,
makes sense in the current situation where
the Rules have not been updated for over
fifteen years. Hopefully, the recent constitution
of the Rules Board will result in
new Rules being promulgated soon, which
might result in a lesser reliance on the
Practice Manual. Until such time, litigants
should ensure that they meet the requirements
of the Practice Manual, as it seems
that the Labour Court treats the Practice
Manual in a manner similar to the Rules.