A Default Award is an award made by the Commissioner at the CCMA or Bargaining Council when the employer failed to attend the Arbitration. This means that the Commissioner will only hear the Applicant’s evidence (employee) and make an award based on what the employee tells him/her. The Default Award is a legally binding decision that the Commissioner will make.
Before the Commissioner makes a Default Award, they will first have to establish whether the employer had received sufficient notice to attend the Arbitration and if they indeed received the Notice of Set Down. If the Commissioner is satisfied that the employer received sufficient notice, the Commissioner will proceed with the Arbitration in default. If the Commissioner is not satisfied, he will most likely postpone the matter to another date in order for the employer to attend the Arbitration.
The Default Award could be made for various reasons. For example, the employer was not aware of the date of the matter that it was set down for, or the CCMA or Bargaining Council failed to send the set down to the correct address, or the employer missed the set down due to an oversight on their side.
The question is now, what should an employer do? Do you pay or comply with the award, or is there any recourse available to you?
Section 144 of the Labour Relations Act (LRA) provides for Variation and Rescission of Arbitration Awards and Rulings.
Section 144 states that a party may, within fourteen (14) days of becoming aware of the Default Award, apply to the Commission to rescind (“cancel”) or vary the award on the grounds that the award:
(a) was erroneously sought or erroneously made in the absence of any party by that award;
(b) in which there is an ambiguity or an obvious error or omission, but only to the extent of that ambiguity, error or omission;
(c) was granted as a result of a mistake common to the parties to the proceedings; or
(d) made in the absence of any party, on good cause shown.
In its application for Rescission, the employer would have to show good cause as to why the Rescission should be granted. You will have to provide details as to the reasons for your absence at the Arbitration, explain why you were not in willful default, and why you would have good prospects of succeeding in the matter. The Commissioner will look at your application and make a ruling based on the evidence provided to him or her. If the Commissioner rules that the Rescission should be granted, the matter will be set down for a new hearing at the CCMA or Bargaining Council to be heard afresh. If the Commissioner decides to dismiss the application, the employer will have to comply with the Default Award.
Employers are warned that the CCMA requires valid reasons and thorough explanations for not attending the Arbitration and proof of these reasons or explanations. Negligence by the employer might not be reasonable grounds to set aside the Default Award.
Parties are therefore advised to exercise extreme care in attending to notifications of CCMA hearings and ensure that they attend all CCMA or Bargaining Council Arbitrations.
Should you receive a Default Award, please forward it to your Labour Consultants or Employers Organisation for assistance.
Article by: Anesta Kruger
Dispute Resolution Official – Durban