From time to time it so happens that the respondent is absent from a CCMA or Bargaining Council matter and then a Default Award can be made in favour of the applicant. Fortunately, there is a remedy available for the respondent to prevent the award from being enforced.
The respondent can apply to have the award rescinded by way of a rescission application. This application consists of an affidavit focusing on the following:
- Reason for absence of the respondent
The respondent must supply a good and valid reason why they were not at the hearing. This reason can vary from having had to attend to an emergency, or never having received notice of the matter at all. Whatever the reason may be, it must be supported by relevant documents attached to the affidavit.
- Prospects of success
The respondent also has to set out the prospect of their case being successful should the matter be heard, in other words, that the merits of the case are in their favour. This pertains to the facts of the respondent’s case and the reason for their actions. This should also be supported by documentation where possible.
Lastly the respondent should indicate what prejudice it would suffer if the given default award would not be rescinded. The most obvious reason being that the respondent will be held liable for the enforcement of the award (i.e. compensation, re-instatement with back pay, etc.) in favour of the applicant.
If the respondent is successful with the application, the award will be rescinded, and the matter will be set down again for arbitration, where both parties will have a chance to state their case.
Should you receive an award for a matter you had no knowledge of, contact your labour consultant as soon as possible and deal with the issue by way of a rescission application.
Article by: Leonard Nieuwoudt
Dispute Resolution Official – Polokwane