It is an often occurrence due to some unforeseen factor that the Respondent (employer) fails to attend a matter as set down by the CCMA or Bargaining Council. This could be because the Respondent did not receiving the notice of set down due to a technical or administrative error.
In the event however of the respondent not receiving this notice, not being aware of the case and thus not attending the matter on the said day the rules dictate that the matter will proceed in the Respondent’s absence. This of course has dire consequences as an award will be issued in the Respondent’s absence and in most cases it is in favour of the Applicant (employee) as the Applicant’s version is the only one brought forward on the day.
If above-mentioned occurs the Respondent has recourse of applying for Rescission, this is to overturn the award made in absentia and have the matter rescheduled allowing the Respondent an opportunity also to state their case. It sounds simple enough but the application needs to be drafted in a specific way containing specific information. Thus the application needs to be drafted correctly as to enable the Commissioner to consider it. Certain aspects need to be addressed in this application which will contribute to its effectiveness.
This is a formal application and it must be based on the following:
• The application for Rescission must be served and filed within fourteen (14) days from which the Respondent becomes aware of the Default Award;
• There must be good cause / a reasonable explanation for the non-attendance;
• It must be stated clearly that the default at the hearing was not wilful and that there was in fact and still is a serious intention to defend the matter;
• The Respondent never abandoned his defence and if he indeed had knowledge of the set down, he would have attended.
• The application must show the existence of a substantial defence. It is not required to show probability of success, it is sufficient that a prima facie case is shown.
It is clear from the above that not attending an Arbitration or a Con / Arb process can have dire consequences for the employer party. Getting an award rescinded is not always as simple as making an excuse as to why the party was in default but rather all the above needs to be considered and the drafting of a proper application is of utmost importance in this process.
If the application is unsuccessful the award will be upheld and the Respondent liable therefore. Should the matter then need to be referred to the Labour Court it is also imperative that a proper application for Rescission had been brought, properly served on parties and that it is on file.
Carlene van der Lith
Dispute Resolution Official – Kimberley (LLB – UNISA)