Must an employee pay the costs for the transcribed record in a review application?

The Rules of the Conduct of Proceedings before the Labour Court (“Labour Court Rules”) require an applicant to furnish the record of the arbitration proceedings that the applicant seeks to review and set aside. This record will include, amongst other things, the transcribed record of the arbitration proceedings.

It is well-established practice for litigants to utilise professional transcribing services to transcribe the record. However, the costs of transcribing the record can be expensive, especially in the case of lengthy arbitration proceedings. Recently, in Van Straaten v Wehnke NO and Others, the Labour Court had to determine whether it was acceptable for an applicant to transcribe the record on their own instead of making use of professional transcriber services.

The process dealing with the furnishing of the record is prescribed in the following Labour Court Rules:

• Rule 7A(5) provides that the Labour Court’s registrar must make the record which has been received from the Commission for Conciliation, Mediation and Arbitration (“CCMA”) or relevant bargaining council available to the applicant;

• Rule 7A(6) provides that the applicant must provide the registrar and each of the other parties to the review with a copy of the record or portion thereof, as the case may be; and

• Rule 7A(7) provides that the applicant must pay the costs of transcription of the record, which become costs in the cause.

In this matter, Van Straaten was employed by the Organisation Undoing Tax Abuse (“OUTA”) as a General Assistant in the legal department. Van Straaten was dismissed based on allegations of racism and gross insubordination. Aggrieved by the dismissal, Van Straaten referred an unfair dismissal claim to the CCMA. The commissioner appointed to arbitrate the dispute found that Van Straaten’s dismissal was procedurally and substantively fair. Van Straaten then launched a review application in the Labour Court.

Whilst prosecuting the review, Van Straaten served and filed a “home-brewed” transcribed record, which he had prepared himself. As a result, OUTA applied for an order to the effect that Van Straaten be directed to, amongst other things, file a record which had been transcribed by professional transcribers, accompanied by a certificate of authenticity. OUTA further sought an order to the effect that the record remained incomplete until Van Straaten complied with the order to provide a professionally transcribed record.

Van Straaten opposed this application and contended that the record remained the record, despite its manner of creation and/or formation.

The Labour Court stated that the presence of a record of the proceedings primarily benefits an applicant for review, and it is in the best interest of the applicant to place a record before the review court. However, if the other party does not think that the record accurately reflects what was said and done during the arbitration proceedings, there is nothing preventing that party from placing its version of the record before the Labour Court.

In reaching its decision, the Labour Court considered that it is established as a court of equity in terms of section 151(1) of the Labour Relations Act, 1995. For this reason, it is responsible for advancing social justice and would not insist on a record that is costly to obtain, as this would be in contravention of the Constitution, which provides for the right of access to courts. Therefore, the Labour Court held that any transcription, irrespective of how it is created, serves the purpose of a record contemplated in subrule 7. The Labour Court, therefore, dismissed OUTA’s application.

Commentary

The Labour Court’s decision is based on considerations of social justice and access to courts. However, the decision does not address the main purpose behind requiring the reviewing party to incur the costs of the transcription, which is to ensure that a professionally transcribed record is made available to the Labour Court. Although professionally transcribed records are not faultless, they are, however, mostly accurate, hence the requirement for a reviewing party to pay the costs associated therewith.

The concern with this development is that there is a possibility that a reviewing party may provide an inaccurately transcribed record. This becomes significant in the event that an employer challenges the authenticity of the record. To the extent that an employer does not wish to rely on the reviewing party’s independently compiled record, the Labour Court has confirmed that an employer would not be prevented from challenging the authenticity of the record and, where appropriate, place before the Labour Court an authenticated record at its own cost.

This approach, however, potentially exposes the review process to abuse by reviewing parties. If a reviewing party, maliciously or otherwise, provides an inaccurate record, this would place an employer in a position which requires it to provide an accurate record and incur the costs associated therewith. If this occurs, the Labour Court should be open to an argument that the reviewing party should bear the costs of the employer’s transcription.

Apart from the potential burdensome cost implications for employers, the process of requiring an employer to provide their own record to settle disputes relating to authenticity of the record filed by a reviewing party will likely result in further delays in the finalisation of review applications.

Siphile Hlwatika