It is often the case that an Employer returns from the festive season break or a period of leave, fully recharged and ready to get back to work. Then “boom”, a former employee knocks on the door with an order obtained during an Arbitration, which the Employer was absent from due to being completely unaware.
This “order” is referred to as a Default Award. So, what is a Default Award? A Default Award is an order made by a Commissioner when the Employer party is absent from the Arbitration proceedings. This means that the Commissioner will only hear the evidence of the Employee party and make a ruling in their favour, depending on the evidence and facts. After obtaining a Default Award, the question that often follows is, “what now?”
This would usually bring panic to any Employer, and understandably so, as this Award can order that a hefty amount be paid to the Employee as compensation or even the reinstatement of the Employee on a specified date, along with possible back pay. Employers need not panic, however, as there is a light at the end of the tunnel.
Section 144 of the Labour Relations Act (LRA) makes provision for the Recission of a Default Award. It states that any Commissioner who has issued an Arbitration Award or Ruling or any other Commissioner appointed by the director for that purpose may, on that Commissioner’s own accord or on the application of any affected party, vary or rescind an Arbitration award or Ruling:
- Erroneously sought or erroneously made in the absence of any party affected by that Award;
- In which there is an ambiguity, or an obvious error or omission, but only to the extent of that ambiguity, error, or omission, or
- Granted as a result of a mistake common to the parties to the proceedings.
So, what is the proper procedure to follow with all of this in mind? The procedure for instituting a Recission application is set out in Rule 32 of the Rules of the CCMA. Rule 32 of the CCMA rules read as follows:
- An application for the variation or rescission of an Arbitration Award or ruling must be made within fourteen (14) days of the date on which the applicant became aware of –
(a) The Arbitration Award or Ruling; or
(b) A mistake common to the parties to the proceedings.
In Northern Training Trust v Maake & Others (2006) 27 ILJ 828 (LC), the test for rescission in terms of Section 144(a) of the LRA was said to be the following: “The enquiry in an application for rescission on an Arbitration Award is consequently ‘bipartite’. The first leg is one which is concerned with whether the notice of set-down was sent; a probability is then created that the notice sent was received. The second leg of the enquiry concerns itself with the reasons offered by the Applicant who failed to attend the Arbitration proceedings. The Applicant must prove they were not in willful default and have reasonable prospects of success with their case, should the Award be set aside.”
It is essential that the Employer is not in willful default. If an Employer did not receive the notice of set-down, it is necessary to ask the respective CCMA to provide them with the proof of service of the set-down. It might be that an incorrect email address or cell phone number was used.
It is, therefore, of the utmost importance to contact your Employers Organisation or Labour Consultants directly after you become aware of such an Award. An application must be brought on notice within the correct time frame to avoid an unnecessary Condonation Application.
Article by Edrich Fourie
Dispute Resolution Official – Kimberley