Employment law update – The dangers of not complying with the Practice Manual

August 1st, 2017

Moksha Naidoo BA (Wits) LLB (UKZN) is an advocate at the Johannesburg Bar.

Sol Plaatjie Local Municipality v South African Local Government Bargaining Council and Others (LC) (unreported case no PR 192/15, 13-6-2017) (Prinsloo J)

With the intention of edifying practitioners of the consequence of failing to file a transcribed record within the prescribed time frame in a review application, the court in this matter gave a detailed interpretation of clause 11.2 of the Labour Court’s Practice Manual, which reads:

‘11.2.1 Once the registrar has notified an applicant in terms of Rule 7A (5) that a record has been received and may be uplifted, the applicant must collect the record within seven days.

11.2.2 For the purposes of Rule 7A (6), records must be filed within 60 days of the date on which the applicant is advised by the registrar that the record has been received.

11.2.3  If the applicant fails to file a record within the prescribed period, the applicant will be deemed to have withdrawn the application, unless the applicant has during that period requested the respondent’s consent for an extension of time and consent has been given. If consent is refused, the applicant may, on notice of motion supported by affidavit, apply to the Judge President in chambers for an extension of time. The application must be accompanied by proof of service on all other parties, and answering and replying affidavits may be filed within the time limits prescribed by Rule 7. The Judge President will then allocate the file to a judge for a ruling, to be made in chambers, on any extension of time that the respondent should be afforded to file the record.

11.2.4  If the record of the proceedings under review has been lost, or if the recording of the proceedings is of such poor quality to the extent that the tapes are inaudible, the applicant may approach the Judge President for a direction on the further conduct of the review application. The Judge President will allocate the file to a judge for a direction, which may include the remission of the matter to the person or body whose award or ruling is under review, or where practicable, a direction to the effect that the relevant parts of the record be reconstructed.’

Factual background

In brief, the applicant employer filed an application to review and set aside an award, which directed the employee be reinstated. On 18 December 2015, the Registrar issued a r 7A(5) Notice informing the applicant that the digital recordings have been filed at court. In response to the applicant’s failure to file the transcribed record by 18 March 2016, that being 60 days from when the r 7A(5) Notice was issued, the employee’s attorney wrote to the applicant’s attorney on 22 March 2016 informing them that their review application was deemed to have been withdrawn.

On 5 May 2016 the transcribed record was served on the employee’s attorney who, on 17 May 2016 informed the applicant’s attorney that the record was incomplete. Having informed the bargaining council of the missing portion of the record, the council advised the applicant’s attorney on 14 June 2016 that it could not locate the full record but that the arbitrator had offered to assist the parties by scheduling a meeting to try and reconstruct the relevant portion of the record.

The applicant filed an application to –

  • condone the late filling of the complete record; and
  • an order directing the parties meet in an attempt to reconstruct the record alternatively that the matter be remitted to the bargaining council to be heard de novo.

The court began by reaffirming the point that the provisions in the Practice Manual are binding on litigants and must be adhered to at all times.

On an interpretation of clause 11.2 of the Manual, the court held that an applicant has 60 days from when the r 7A(5) Notice was issued to file the transcribed record. Once an applicant is unable to meet this deadline, it must approach the respondent seeking its consent to extend the period in which to file the record. Should the respondent refuse this request, the applicant may then apply to the Judge President, by way of a notice of motion and supporting affidavit, for an extension of time.

On the facts of the matter, it was common cause that the applicant had not filed the record within the stipulated time period nor had it sought the employee’s consent for an extension of time and thus, on a reading of clause 11.2.3, the court found that the applicant was deemed to have withdrawn its review application.

Pursuant to this finding, the court held that it could no longer grant the alternate order remitting the matter to the bargaining council, nor could it condone the late filing of the record, as per the first prayer sought.

This, however, was not the end of the road for the applicant – the court found there was nothing in law preventing the applicant from applying for its review application to be reinstated together with an application to condone the late filing of the record.

In addressing the second prayer, the court noted that parties often abuse clause 11.2.4 of the Manual by seeking the court’s direction under circumstances where the record is missing, incomplete or inaudible, before first fully exploring all options. In doing so, practitioners unnecessarily and unduly increase the workload of the court.

In setting out the steps a party should embark on before approaching the court for direction, Prinsloo J held an applicant party must first determine whether the missing portion of the record is relevant for purposes of its review application; bearing in mind the Labour Court Rules require an applicant only serve the relevant portion of the record in its review application.

If the entire record is lost or the missing portion is relevant then it is the applicant’s duty to drive the reconstruction process to its finality.

If the reconstruction process proves unsuccessful, the applicant must then seek the respondent’s consent to have the matter remitted to the bargaining council or Commission for Conciliation, Mediation and Arbitration to be hard de novo. If consent is given the applicant can approach the Registrar for an order to be made by a judge in chambers in terms of r 17(3).

It is only when the respondent does not consent to the matter being heard afresh, should an applicant approach the Judge President in terms of clause 11.2.4 of the Practice Manual.

In this case, the bargaining council, in 2016, indicated its willingness to assist the parties to reconstruct the record, yet instead of following through on that process, the applicant brought an application seeking the court to direct the parties to meet in an attempt to reconstruct the record. This, according to the court was an abuse of clause 11.2.4.

The application was dismissed with costs.

This article was first published in De Rebus in 2017 (Aug) DR 39.