CCMA Rules 5 and 6 pertains to the various methods of serving documents on parties and the proving thereof in a CCMA dispute. One such method, is Service by fax. In terms of Rule 5(1)(c) a party must serve a document on the other parties by faxing or telexing a copy of the document to the person’s fax or telex number respectively, or a number chosen by that person to receive service.
The CCMA is responsible for notifying parties when a dispute between an Employee and an Employer is set down to be heard by a Commissioner. Usually, this notification is done by way of e-mail or fax. Fax rely on telephone lines to be delivered successfully to the intended person. Many Employers reside in areas where internet connection is very poor or nearly non-existent and/or the possible theft of telephone lines, resulting in e-mails and faxes not being delivered. Another reason why Employers are not aware of CCMA Set Downs, are that the Employee, referring the matter, provides the CCMA with incorrect information regarding the Employer party. For these reasons, it is sometimes difficult for Employers to receive faxes or e-mails, resulting in them being unaware of CCMA Cases set down to be heard. Consequently, Employers or their Representatives do not attend the hearing, but the Employee does.
In the instance that the Employer or its Representative is absent at the CCMA Hearing, CCMA Rule 6(1)(c) states that service of the Notice of Set Down to the Employer or Employee, may be proved with a copy of the telefax transmission report indicating the successful transmission to the other party of the whole document. Rule 6 further states that if proof of service in accordance with sub-rule 6(1) is provided, it is presumed, until the contrary is proved, that the party on whom it was served has knowledge of the contents of the document. This means that a Commissioner, in the absence of proof that the Employer did not receive the Notice of Set Down, may accept that the Employer did indeed receive the Notification of Set Down and intended to waive his/her right to appear and defend the scheduled matter. Consequently, the Commissioner shall continue with the CCMA Hearing in the absence of the Employer and issue a Default Award in favour of the Employee.
The Employer or its Representative, in becoming aware of the Default Award, will have to apply for such Default Award to be rescinded. In the Application, the Employer will have to prove that he/she/it did not receive the fax, for whatever valid reason there may be. The Courts, in this regard, have held that in deciding whether or not a fax transmission was received, proof that the fax was indeed sent creates a probability in favour of receipt, but it does not constitute conclusive evidence of such receipt. Furthermore, the courts have held that a party who claims that it did not receive a telefaxed notification must be given particulars of the proof of service and be afforded the opportunity to provide an explanation as to whether or not it was received.
In Edgars Consolidated Stores (Pty) Ltd v Kalanda & Others  7 BLLR 632 (LC), the court held that a fax transmission slip or proof of registered mail is at best proof, on the face of it, that a Notice of Set Down was served. In the event that there is no other evidence to proof that the Notice of Set Down was indeed received, Commissioners should accept the mere say so of an Applicant for Rescission that he/she/it did not receive the Notice of Set Down.
Therefore, in the absence of proof that a Notice of Set Down was, indeed, served on the Employer, it would be a gross irregularity to dismiss a Rescission Application in cases where the Set Down was not served at a chosen service address and the Applicant party failed to attend. This has been confirmed in the Labour Court Judgement of Inzuzu I.T. Consulting (Pty) Limited v CCMA & Others (2010) 12 BLLR 1288 (LC).
Article by: Carine van Blerk
CEO Dispute Resolution Official – Cape Town