The CCMA or relevant Bargaining Council’s dispute resolution centre’s primary compulsory statutory functions are to:
- Conciliate workplace disputes.
- Arbitrate certain categories of disputes that remain unresolved after conciliation.
Arbitrations are formal proceedings, and in terms of the CCMA or Bargaining Council rules, failure to attend arbitrations may result in the matter being removed from the roll if the referring party defaults or the matter proceeding in the absence of the non-referring party and a finding being made in absentia.
In the usual course of events, if the non-referring party does not attend the arbitration and a default award is issued, the party can file a rescission application in non-attendance. The reason for the rescission application is to pardon the party for not attending, provided that the reason for non-attendance is valid and substantiated.
Subsequent to the rescission application, the CCMA or Councils will set the matter down for rescission as a process or decide on the submitted papers. Where placed as a process, the parties must attend to make submissions to pardon the party from not attending the case or oppose the rescission application. If the rescission is granted, then the arbitration default award falls away, and the arbitration is set down again, but if the rescission is refused, then the default award remains, and the party is forced to comply.
Employers often file a rescission application due to them not attending the arbitration, but the filing of rescission applications come with a time frame that has to be adhered to, and in most cases, those time frames lapse, hence leaving the rescission application being referred outside the prescribed time frame.
When an employer does not file a rescission application within the prescribed time frame, then a condonation application has to be filed to the relevant forum to pardon the party from not referring the rescission application within the specified time frame, but where this was previously the case for both parties, there is the twist in the plot and here is how the new directive issued by the CCMA on the 15th of October 2021 can affect the usual process of applying for condonation in terms of rescission applications.
In light of arbitrations that neither party has attended or where only the employer attends, the CCMA has issued a directive on the 15th of October 2021. The directive is in relation to Section 138(5)(a) dismissal and re-enrolment. The purpose of the directive is to:
- Communicate the CCMA’s position in the decision of the Labour Court in Solomans V Food Lovers Market Kempton handed down on the 2nd of August 2021 relating to the interpretation and application of section 138(5)(a) of the Labour relations Act 66 of 1996, as amended(“LRA”).
- Direct commissioners on the steps that must be taken when exercising discretion to dismiss matters at arbitration in terms of section 138(5)(a)
- Direct commissioners on the steps that must be taken for processing applications for re-enrolment of matters after they have been dismissed (removed from the roll) in terms of section 138(5)(a).
With the above being taken into account, this has ultimately changed the course of procedures of condonation applications in terms of referring a rescission application outside the prescribed time frame. It is now an incorrect process for employers and employees to file an application for condonation for the late filing of a rescission application. This emanates from the Labour Court decision mentioned in the above directive. The court further stated that a decision in terms of section 138(5)(a) is an administrative act, i.e. the performance of a statutory power. As such, there is no scope for an application for rescission of the decision.
The Labour Court laid down guidelines as to what a commissioner should do at the arbitration if the Applicant party failed to appear. If the absence is wilful or unexplained, the Commissioner may dismiss the matter and remove it from the roll. The Commissioner must complete a form noting that the absent referring party may request that the matter be re-enrolled. The referring party then completes a prescribed form, who must give reasons for their absence and request re-enrollment.
With the coming into effect of the new directive issued on the 15th of October 2021, Consolidated Employers Organisation has experienced the above directive in practice. In recent events, our organisation received a rescission application from an Applicant that did not attend the arbitration. The Applicant had also attached a condonation application to pardon him for not filing the rescission application within the correct time frame.
With CEO being well aware of the new directive issued, we advised our members of the current processes to follow, which is to notify the CCMA or the relevant council of the application we have received stating that the condonation application will be unopposed due to the new directive issued. Instead, the way forward will now not be a rescission application, but rather that the party who was in absence will now need to file a request for the re-enrolment of their dispute. In such a request, they must give a proper explanation for their absence at the arbitration. Thereafter, the council or CCMA Commissioner will decide that the matter be re-enrolled, or if the Applicant’s explanation is not acceptable to close the matter on the case management system.
Should an employer not attend an arbitration or receive a rescission application or a condonation application from an applicant, we urge our members to contact their nearest CEO office for assistance in this regard.
Article by: Niksha Nilchand
Legal Assistant – Durban