Section 138 (5) of the Labour Relations Act (as amended) stipulates that:
“If a party to the dispute fails to appear in person or to be represented at the arbitration proceedings, and that party –
(a) had referred the dispute to the Commission, the commissioner may dismiss the matter; or
(b) had not referred the dispute to the Commission, the commissioner may –
(i) continue with the arbitration proceedings in the absence of that party; or
adjourn the arbitration proceedings to a later date.”
From the above provision, it is evident that an applicant who fails to attend the arbitration proceedings will be issued with a dismissal ruling, whilst for the respondent, a default award will be issued. This is largely because the presiding commissioner only has one unchallenged version before him or her.
There are, however, times where a party attends the arbitration proceedings but leaves without defending its case. This may be due to a postponement application being refused, where a commissioner refuses to recuse himself or herself, when a commissioner makes an adverse ruling in the course of proceedings or where a party is generally of the view that it is not being afforded a fair hearing.
In this instance, the general rule is that a party who walks out of proceedings may be deemed to have abandoned those proceedings or waived its rights to be heard in the matter and accordingly the commissioner may proceed with the proceedings in its absence.
The question of whether a party has waived its right is a question of fact as, by law, a waiver of a right cannot be presumed. In Lufuno Mphaphuli and Associates (Pty) Ltd v Andrews and Another 2009 (6) BCLR 527 (CC) at para  it was held that;
“Waiver is not presumed; it must be alleged and proved; not only must the acts allegedly constituting the wavier be shown to have occurred, but it must also appear clearly and unequivocally from those facts or otherwise that there was an intention to waive…it must be shown that the other party with full knowledge of the right decided to abandon it, whether expressly or by conduct plainly inconsistent with the intention to enforce it. Waiver is a question of fact and is difficult to establish”.
In Bloem Water Board v Hash (unreported case no JA83/2016, 28-6-2017), both parties had attended the arbitration proceedings. Bloem Water Board, however, left the premises prior to the matter commencing because the commissioner was almost an hour late. It then wrote to the council complaining about the commissioner’s conduct and requested for the matter not to be heard in its absence. Once the commissioner arrived, he proceeded with the matter in Bloem Water Board’s absence as it took the view that it had abandoned the proceedings by leaving the premises. On appeal, the labour appeal court held that:
“This situation required the arbitrator to exercise a discretion to stand the matter down and attempt to secure the return of those absent or to postpone the arbitration or to proceed with the arbitration. In considering the issue, the arbitrator should have been mindful that his failure to attend at the appointed hour (regardless of the reason for this) was the proximate cause of the appellant’s representative leaving when they did.
Instead, the arbitrator put the blame on the appellant… The fact that the appellant attended the arbitration and waited for the arbitrator even though he had not arrived timeously and had previously arrived late for an arbitration, does not signify that the appellant abandoned the arbitration”.
Another case is one of Nqobile Moffat Nxumalo v Border Cricket (NPC) (unreported case no P69/13), delivered on 17 November 2016. In this case, the matter was part-heard and Nxumalo had a pending complaint against the commissioner regarding his conduct at the previous sitting of this matter. At the hearing in question, Nxumalo, did not want to proceed with the matter until she had received an outcome of her complaint. The commissioner refused to postpone or stand the matter down to enable Nxumalo to make enquires regarding her complaint. Despite the commissioner’s refusal to stand the matter down, Nxumalo walked out of the proceedings to speak with the senior commissioner regarding her complaint. The commissioner proceeded to issue a dismissal ruling in her absence. On review, the dismissal ruling was set aside as Nxumalo walked out of the proceedings with the clear intention of enquiring about her complaint and not abandon her referral.
In light of the decisions, it is clear that our courts take cognisance of the fact that a person does not, as a rule, lightly abandon his or her rights and accordingly it does not follow that in each instance when a party walks out of proceedings it should be deemed that a matter has been abandoned or that a party had waived its rights to have its matter determined. There must be a basis for such conclusion. The primary consideration in all instances is whether ultimately, the commissioner exercised his or her duties fairly in the conduct of proceedings, including arriving at the decision that a matter is either abandoned or that a party had waived its rights to have its matter heard. In the absence of same, the dismissal ruling or award would be set aside.
Article by: Nqobile Ntuli
CEO Dispute Resolution Official – Polokwane