This article will briefly explore some of the dangers and liabilities that flow from making a decision to disregard notices and communications received from the CCMA and failing, for whatever reason, to attend hearings set down at the CCMA.

In the pitch-and-toss of running a business, business owners are required to make quick instinct-based decisions regularly. More often than not, this comes down to simply not having enough time, while at other times decision-makers have to weigh certain risks and liabilities against others. One of the biggest sources of liability facing business owners is the decisions made relating to their employees and labour disputes at the CCMA.

Most business owners are aware that the bulk of labour law is contained within the Basic Conditions of Employment Act and the Labour Relations Act. However, many business owners aren't necessarily aware of the full extent of the powers of the CCMA and its commissioners.

In circumstances where a matter has been set down for arbitration at the CCMA, and the employer fails to make an appearance or provide a valid reason the commissioner is entitled to proceed in the absence of the employer. The commissioner will then hear the employee’s evidence and case but will have no alternative version to test the employee’s version. Unless the employee’s case is fatally flawed in some-way, the commissioner will be hard-pressed to not find in favour of the employee and issue a default judgment against the truant employer.

In the case of Mphahlele v Muswede ((JS173/14) [2017] ZALCJHB 20) the employee (Muswede), was awarded judgment in default for an amount equivalent to 24 months’ salary. The employee, very merrily and without any reservation, attended at the employer and delivered the award, in person.

An employer, upon receipt of an award granted in default, will have to attend at the CCMA and file an application to reverse the effect of the award known as an Application for Rescission. It is vital at this stage that an employer take immediate action and not procrastinate as there is only a short window of time within which the employer may lodge its grievance.

If the employer adheres to the time limits and makes it to the CCMA in time, the employer will then have to prove to the Commissioner that the reason for its absence from attending the arbitration was valid. Fair warning: the employer will face the original commissioner who, as the reader may imagine, will not take kindly to the employers' truancy or any weak and unsubstantiated excuses.

The most difficult hurdle faced by the employer is that they will have to prove to the commissioner that their case has ‘reasonable prospects of success’. This means that the case of the employer must be sufficiently laid out to the satisfaction of the commissioner. Fair warning: the employer will face the same commissioner who would have already made an ostensibly well-reasoned decision who, as the reader may imagine, will place an increased degree of burden on the employer.

If the employer is successful, the matter is referred back to the CCMA for arbitration, and the matter is argued afresh. If, however, the rescission is not granted by the CCMA, the employer will then have to take the Commissioner's decision on review at the Labour Court. The test used will be for the employer to prove that the commissioner committed some form of misconduct, by, amongst other requirements: making an improper ruling, exceeded their powers, or some form of gross irregularity. 

There is no shortage of cases referred to the Labour Court which result in the rulings of CCMA commissioners being overturned. These are, however, hard-fought successes - reaching the Labour Court is a lengthy and time-consuming process which drains an employer’s financial resources and requires a high degree of attentiveness and technical legal know-how.

With that in mind, in many cases, the employer does not meet the burden of proof and fails to rescind the CCMA's award and are required to pay heavy penalties over and above being made responsible for the employee’s legal costs.

The lesson to take away here is that companies and business owners must ensure that they know exactly how to deal with labour disputes and have taken proper steps to limit their exposure to all risk and liability. Further, never ignore a notification from the CCMA. Either attend in person, send someone on your behalf and be sure to seek immediate legal advice from a legal services provider you trust.

If you, or your company find themselves concerned for what reason, feel free to contact SchoemanLaw Inc.

Written by Reenen Lombard, Professional Assistant, Attorney, Schoeman Law