The CCMA and Bargaining Councils have concurrent jurisdiction to hear disputes and to make awards accordingly against one of the parties to a dispute.
What if one party does not show up?
The party who missed the arbitration hearing may apply for a Rescission of the arbitration award made. This application can be made for the following reasons in terms of S144 Variation and Rescission of arbitration awards and rulings of the Labour Relations Act (LRA):
- If the award or ruling was erroneously made in the absence of any party affected by the award;
- in which there is an ambiguity, or an obvious error or omission, but only to the extent of that ambiguity, error or omission;
- granted as a result of a mistake common to the parties to the proceedings; or
- made in the absence of any party, on good cause shown.
If you missed arbitration, here are the steps you need to take detailed below:
- Submit a Rescission Application
- Serve the documents on the opposing party and file with the CCMA
- Apply for condonation application of you are out of time for rescission
The rescission application must be made and submitted to the party within 14 days of becoming aware of the award that was made in a party’s absence. The 14 days are calendar days and not court days, therefore you must count weekends as well.
The application must be made and/or supported by an affidavit made by the owner of the business and or any authorised person designated to make such affidavit on behalf of the business.
The Notice of motion must be submitted, together with the affidavit and the two documents, make up the rescission application.
The document must then be served on the opposing party and filed with the CCMA with proof of service, i.e. via registered mail. The affidavit must set out why the party was not at the Arbitration and that such a party has a good chance of success to win the case should the rescission be granted to prove its case.
If a party is out of time with the application, they may apply for a condonation application. This means that the defaulting party must ask the Commissioner’s permission to still consider the rescission application even though they are outside of the 14 day rule.
The condonation application will be considered if the delay is reasonable and is not too long outside of the 14 day rule.
The application is made to the Commissioner who gave the arbitration award in the first place. The Commissioner may consider the application by perusing the rescission application only and not hear oral evidence for that. In such cases, the Commissioner will grant the application and set the matter down directly for arbitration again. A Commissioner may also first set the matter down to hear oral evidence regarding the rescission application and then make a finding on that first before setting it down for arbitration.
The decision is binding and any party who is still not happy with the finding may refer the matter to the Labour Court for it to be reviewed.
ABOUT THE AUTHOR
Rezonia Davids obtained her LLB degree in 2007 from the University of the Western Cape. She worked at Pretorius Rosant Attorneys, a firm specialising in Conveyancing law while completing her LLB degree. She also attended the University of Cape Town where she completed the School for Legal Practice programme.
She worked at Legal Aid South Africa as an Article Clerk and was thereafter admitted as an Attorney in the High Court of South Africa. Rezonia has been part of SEESA Labour since 2010.