It is crucial for both parties to a dispute to receive notice to attend the matter in order for the parties to defend their case on the date set down by the Commission for Conciliation, Mediation and Arbitration (hereinafter referred to as the CCMA).
As soon as an employee decides to refer a matter to the CCMA, the CCMA will inform both the employer and employee of the date for conciliation and/or arbitration and/or con-arb.
One of the most common reasons for either one of the party’s absence is that they were not aware of the proceedings as the notice to attend the arbitration was not properly served on him/her as set out in terms of Rule 5.
Rule 5 and 5A of the Rules for the Conduct of Proceedings before the CCMA lists possible methods of service which could be used in order to inform both parties to the dispute to be present at the CCMA.
Rule 5A of the Rules for the Conduct of Proceedings before the CCMA reads as follows:
“The Commission may provide notice of a conciliation or arbitration hearing, or any other proceedings before it, by means of the methods prescribed in Rule 5 and/or by means of short message service.”
Rule 5 prescribes different ways to serve documents on parties. Methods of service which are most commonly used and prescribed by Rule 5 include (please note that all methods of service are not included in this article):
- By handing a copy of the document to –
1.1 the person concerned;
1.2 a representative authorised in writing to accept service on behalf of the person;
1.3 a person who appears to be at least 16 years old and apparently in charge of the person’s place of residence, business or place of employment at the time;
- By leaving a copy of the document at –
2.1 an address chosen by the person to receive service; or
2.2 any premises in accordance with sub-rule (3);
- By e-mailing, faxing or telexing a copy of the document to the person’s e-mail, fax
or telex number respectively, or an e-mail address, fax or telefax number chosen
by that person to receive service;
- By sending a copy of the document by registered post or telegram to the last
known address of the party or an address chosen by the party to receive service.
- The Commission or a commissioner may order service in a manner other than
prescribed in this Rule.
It may happen that either the employee or the employer did not receive notice of the date for conciliation or arbitration as the notice to attend was sent to the incorrect number or address or the details of the party(s) as indicated on the referral form does not exist anymore.
By implication, this would mean that one of the parties to the dispute will not be in attendance at the CCMA on the stipulated date.
Rule 30 (1)(a) of the Rules for the Conduct of Proceedings before the CCMA refers to the failure of an employee to attend the arbitration proceedings and reads as follows:
“if a party is to attend arbitration proceedings before the Commission, and that party had referred the dispute to the Commission, a commissioner may dismiss the matter by issuing a written ruling”.
Therefore, should the employee (applicant) fail to be in attendance on the date of arbitration, the commissioner will issue a written ruling referred to as a “dismissal ruling”, and the commissioner will issue this ruling only if the commissioner is satisfied that the employee had been properly notified of the date, time and venue of the proceedings.
Rule 30 (1)(b) also refers to the failure of an employer (respondent) to be present at any arbitration proceedings before the CCMA and reads as follows:
“If a party to the dispute fails to attend or be represented at any arbitration
proceedings before the Commission, and that party had not referred the
matter to the Commission, the commissioner may –
(i) continue with the proceedings in the absence of that party; or
(ii) adjourn the proceedings to a later date.”
Therefore, should the employer (respondent) fail to attend the arbitration proceedings at the CCMA, the commissioner may continue with the proceedings in the absence of the employer after the commissioner has confirmed that the employer had been properly notified of the date, time and venue of the proceedings.
The award that is made in the absence of the employer is called a “default arbitration award”, and this award will only reflect the employee (applicant’s) version of events. The dismissal ruling or the default arbitration award is not necessarily “the end of the road” for the parties.
The employee can apply for a rescission of the dismissal ruling if he/she was the party that was not in attendance at the proceedings by supplying the CCMA with reasons as to why he/she was not in attendance.
Similarly, an employer may also apply for rescission of a default arbitration award which was made in his/her absence by providing the CCMA with reasons as to his/her absence.
As seen from the above, there are quite a few rules and procedures to follow should any one of the parties not be in attendance at the arbitration. Therefore, it is important for employers to contact their labour advisors in order to receive the necessary assistance in circumstances such as these.
Article by: Meghan Louw
Dispute Resolution Official – Port Elizabeth