The CCMA and most Bargaining Councils allow for a customary 30 minute waiting period if a party is not present at the time stated on the notice of set down, which is referred to as a ‘grace period’.  This grace period is not allowed for in the rules and is not always afforded.  The Bargaining Council for the Food Retail, Restaurant, Catering and Allied Trades, for instance, does not provide for a grace period and matters will proceed immediately at the time it is set down for.

When the Applicant – the employee in most instances, does not attend an arbitration process, the matter will be dismissed in their absence and a dismissal ruling will be issued to this effect.

If a Respondent party – the employer in most instances, does not attend an arbitration process, the Commissioner will proceed with the matter in the Respondent’s absence and hear only the version of the Applicant.  This would most likely result in a default award being made in the Applicant’s favour as there is nothing before the Commissioner to contest their version.  The default award has the same effect as an arbitration award and can also be enforced if the Respondent does not comply with it.

The remedy for both the Applicant and Respondent after a dismissal ruling/default award is to bring a rescission application in terms of Section 144 of the Labour Relations Act within 14 days of becoming aware of the award or ruling, requesting that the dismissal ruling be set aside and that the matter be re-enrolled for arbitration.

Any party seeking a default award/dismissal ruling to be rescinded would have to address the following:

(1) Reason/s for non-attendance (the notice was sent to the wrong fax number or address, etc.);

(2) Prospects of success / bona fide defense;

(3) Prejudice if the rescission application is not granted.

Only if the Commission or Bargaining Council is satisfied in the party’s reasons as provided, will the dismissal ruling/default award be set aside and the matter be re-enrolled for arbitration. 

If the rescission application is unsuccessful, the default award or dismissal ruling will stand and remain binding on the parties.

For this reason, it is crucial that the Employer attend arbitration proceedings with the necessary witnesses.  It is a good rule of thumb that any party involved in the circumstances leading to the dispute also be present and available for the arbitration proceedings.

 

Article by: Engela Venter

CEO Dispute Resolution Official – Pretoria