Too many employers have received default awards from the CCMA. The term ‘default award’ refers to the situation where the employer fails to attend the arbitration hearing and the arbitrator therefore makes an award in the employee’s favour. As the arbitrator has little or no way of testing the truth of the employee’s evidence he/she has to accept the employee’s version and find against the absent employer.

The employer’s first step after recovering from the shock of receiving the default award is to apply for a rescission (or cancellation) of the default award. As there are strict rules and time deadlines for rescission applications you must ensure that you very quickly obtain assistance from a reputable labour law expert.

A rescission application is likely to be granted if it is properly put together and valid proof is submitted of factors such as illness, or failure of the CCMA/bargaining council to serve the notice of set down on the employer.

In the rescission application and in any opposition papers the main issues argued are the applicant’s reasons for absence and the applicant’s prospects of succeeding with the case if the rescission is granted.

Should your rescission application be turned down you can take the arbitrator on review to the Labour Court asking the Court to set the ruling or award aside on the grounds that the arbitrator, in making the ruling/award, ‘misconducted himself/herself’. That is, the review application is not a direct appeal against the arbitrator’s decision but rather a claim that the arbitrator:

• Committed misconduct in relation to his/her arbitration duties
• Committed a gross irregularity in the conduct of the arbitration proceedings
• Exceeded his/her powers or
• Made the award improperly

In the case of Northern Province Local Government Association vs CCMA and Others (2001, 5 BLLR 539) the Labour Court found that Commissioners are not entitled to regard fax transmission slips as definitive proof that the party received the notice of the arbitration hearing.

This judgement should not make parties complacent. Due to the fact that fax transmission reports are generally accepted as proof of legal service of notices any argument as to why such fax reports should not be accepted need to be very well argued. In the absence of convincing proof and argument the CCMA’s rescission ruling is likely to be upheld by the Labour Court.

To attend our 22 July seminar on COMBATING ABSENTEEISM AND LATECOMING please contact Ronni on ronni@labourlawadvice.co.za or 0845217492.

Written by Ivan Israelstam, Chief Executive of Labour Law Management Consulting.