Few moments are more unsettling for an employer than discovering a CCMA or Bargaining Council award issued in their absence. The instinctive reaction is often panic, followed by a hurried question: Can this be rescinded?

While Section 144 of the Labour Relations Act (LRA) provides the legal gateway for rescission, the reality is that rescission applications succeed or fail not on technical wording alone, but on credibility, fairness, and judicial discretion.

Rescission Is Not an Automatic Reset

A common misconception is that a default award can simply be “undone” because one party was not present. Section 144 does not create an automatic right to rescission. Instead, it allows a Commissioner to intervene only in limited circumstances, such as where the award was issued in error, resulted from a common mistake, or requires correction due to an obvious ambiguity or omission.

Where a party was absent, the real enquiry begins after the absence is established. The focus shifts to why the party failed to attend, and whether it would be fair to reopen the dispute.

The Real Question: Can You Explain Yourself?

Although Section 144 does not use the phrase “good cause,” this concept sits at the heart of rescission applications. Over time, the Labour Courts have made it clear that rescission is not about technical compliance, but about whether the defaulting party deserves the indulgence.

In practical terms, this means a party must satisfy four interconnected considerations:

  • Was there a reasonable explanation for the absence?
  • Was the default genuinely not wilful?
  • Is there a real defence or case worth hearing?
  • Does the applicant show a genuine intention to participate meaningfully going forward?

These factors are not tick-box requirements. They are weighed together, holistically, with fairness as the guiding principle.

Why “I Was Sick” Is Not Always Enough

Medical reasons are often advanced in rescission applications, but they are not automatically persuasive. What matters is whether the explanation is supported by evidence, communicated timeously, and consistent with the conduct of the party before and after the hearing.

This issue was sharply illustrated in Primeserv Staff Working Dynamix (Pty) Ltd v Williams NO and Others. The employer failed to attend arbitration due to its representative’s ill health. The arbitrator refused rescission, labelling the absence wilful and dismissing the employer’s prospects of success.

On review, the Labour Court took a different view. The Court found that the arbitrator failed to properly assess the explanation and applied the wrong legal standard. Crucially, the Court emphasised that rescission decisions must be rationally connected to the evidence and the applicable legal principles. The ruling was set aside, and rescission was granted.

The lesson is clear: a weak evaluation of fairness is just as reviewable as a weak explanation for absence.

Prospects Matter, But Not in Isolation

Another frequent mistake is assuming that strong prospects of success can rescue an otherwise poor rescission application. While prospects are important, they cannot compensate for dishonesty, recklessness, or a complete disregard for process.

Conversely, where an explanation is reasonable and the default genuinely unintended, even moderate prospects of success may justify reopening the matter. Rescission is ultimately about restoring procedural fairness, not rewarding procedural indifference.

Discretion, Not Entitlement

Rescission remains a discretionary remedy. Commissioners are expected to exercise this discretion judicially, balancing the prejudice to both parties, the explanation for default, and the broader objectives of the LRA, including expeditious dispute resolution and fairness.

The Labour Appeal Court has cautioned against rigid or mechanical reasoning. Fairness does not live in silos. It emerges from a careful weighing of all relevant factors.

The Practical Reality

In practice, successful rescission applications are those that:

  • Are filed promptly (or properly condoned if late);
  • Contain a coherent, honest explanation supported by evidence;
  • Demonstrate respect for the process rather than indifference to it; and
  • Show that reopening the matter would serve justice, not merely convenience.

Final Thought

A default award is not the end of the road, but rescission is not a safety net for poor case management. It is an equitable remedy, grounded in reasonableness and fairness. Parties who approach rescission with candour, diligence, and respect for the process stand a far better chance than those who rely on technical arguments alone.

In the end, rescission is less about correcting absence and more about restoring confidence in the integrity of the dispute resolution process itself.

Article by Faheqa Adam

Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)