The festive season is a time of joy and celebration. However, while you might enjoy some time on the beach with your family and friends, the CCMA is still operational and proceeding with cases. If you find yourself missing your CCMA case over the festive period, it’s essential to understand the implications and the steps you can take to rectify the situation. One avenue to explore in such circumstances is applying for rescission.
Life is unpredictable, and sometimes, despite our best intentions, we may find ourselves unable to attend scheduled appointments or hearings, especially during this busy time. Missing a CCMA case, however, can have serious consequences, potentially impacting the outcome of your dispute.
When a party fails to attend a CCMA hearing, it can result in the case being dismissed or a ruling/default award being made in the absence of one of the parties. This can be a significant setback, as decisions made without your input may not fully represent your side of the story.
Rescission is a legal remedy allowing a party to apply for an award or ruling to be rescinded. In the context of a CCMA case, rescission provides an opportunity for the party who missed the hearing to present their case and request a “review” of the decision made in their absence.
In terms of Section 144 of the Labour Relations Act (LRA), arbitration awards or rulings can be rescinded under the following circumstances: where it is erroneously sought or made in the absence of any party affected by the award; in which there is an ambiguity or an obvious error or omission; granted as a result of a mistake common to the parties in the dispute and made in the absence of any party on good cause shown.
Steps to Apply for Rescission:
It’s crucial to act swiftly once you realise you have missed your CCMA case. Delaying the application for rescission may reduce the chances of success. The Application for Rescission must be made within 14 days of that party becoming aware of the ruling or award or the mistake common to the parties. However, if the 14 days have lapsed, applying for condonation along with the rescission application is possible. The condonation application will address factors such as the degree/extent of the lateness of the application, the reason for the lateness, the prospects of success on the merits, prejudice to the other party & other relevant factors.
It is, however, strongly advised to ensure that you adhere to the 14-day timeframe of a rescission application. Otherwise, you need to succeed in both the condonation and rescission applications to have an award or ruling rescinded, which can become a challenging task.
Provide Valid Reasons:
When applying for rescission, providing valid reasons for your non-attendance is essential. Acceptable reasons may include illness, family emergencies, or, more specifically, during the festive period, you may need to show you were out of the office and could not access your emails, or even out of the country, or any other circumstances that prevented you from attending. The Application should show that the party’s failure to appear or oppose the relief contained in the award or ruling was not due to wilful default on their part.
Along with the application, it’s advisable to provide supporting documentation substantiating your reasons for missing the hearing. This may include medical certificates, leave forms, proof of an out-of-office reply, flight tickets, affidavits, or other relevant evidence.
If the Commissioner decides to rescind or not to rescind the ruling or award, they will issue a Rescission Ruling, setting out the outcome and the reasons thereof. This ruling is final and binding on the parties, and any party not satisfied with it may challenge it on review through the Labour Court.
Missing a CCMA case over the festive period can be a challenging situation, but it’s important to remember that there are avenues available to rectify the situation. Applying for rescission allows you to present your case and seek a fair resolution. Taking prompt and appropriate action can increase the likelihood of a positive outcome and ensure that your rights are adequately represented in the CCMA process.
Article By Wesley Field (Provincial Manager) & Arlene Jacobs (Senior Dispute Resolution Official) at Consolidated Employers Organisation (CEO SA)