An employer, who failed to attend arbitration proceedings, phoned me for advice. He says he had no knowledge of the event.
A dispute was referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) by the employee and due to the employer’s absence, a default arbitration award was issued in favour of the employee by the arbitrator.
The reader – the employer party – says he was never made aware of the set down date for the arbitration proceedings and would like to know what legal recourse he can take.
In terms of Section 144 of the Labour Relations Act (LRA) of 1995, the employer party can bring a rescission application to the CCMA to set aside the default award. If the award is rescinded, the matter will be set down for arbitration so that it may be arbitrated with both parties present.
It is important for the employer party to note that he needs to serve and file the rescission application within 14 calendar days after becoming aware of the default award. Should this period already have expired, the employer party will have to bring an application to condone the late filing of his rescission application.
In order to make clear the reason why the rescission application is brought, the employer party has to – in terms of section 144 – state his reason(s).
The application itself is twofold.
It consists of a notice of motion, which informs the CCMA of the nature of the application as well as the relief sought. The attorney of record must sign the notice of motion.
The second part of the application is the founding affidavit, which must be attached to the notice of motion. This is drafted by the attorney on behalf of the client.
The employer party has to show good cause and provide a bona fide defence why the arbitration award should be rescinded.
The affidavit will contain: the person’s name and particulars, that he has the authority to depose to the affidavit, a full description of the parties to the proceedings, a background to the dispute, an explanation for non-attendance of the arbitration, prospects of success, prejudice to the parties, legal principles, a conclusion, a question of law, a schedule of documents and what outcome the party bringing the application prays for.
If the client agrees on the content of the founding affidavit, it has to be commissioned by a commissioner of oaths and attached to the notice of motion. A copy has to be served on the employee by fax or registered post.
Irrespective of which option the employer exercises, proof of service needs to be filed with the CCMA. Having done this, any of the same methods must be followed by the employer to get the documentation to the CCMA.
The respondent has 14 calendar days to oppose the rescission application by filing opposing papers. If opposing papers are received, the applicant has seven days to file replying papers.
Once all the papers have been received, the commissioner will make a ruling based on the papers itself and this ruling must be served on the parties within 14 days. Under certain circumstances, the parties may request that the application be set down for verbal arguments.
If the application remains unopposed, the commissioner will generally rule in favour of the party bringing the application. The rescission application will therefore be successful, which means the matter will again be set down for arbitration.
If the employee party opposes the application and is successful, the arbitration award will stand.
Wikus van Rensburg is a well-respected labour law attorney in Port Elizabeth in Nelson Mandela Bay.
Send your labour and other workplace related questions to coetzee@fullstopcom.com.
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