A default award is an award that is given at the CCMA / Bargaining Council when a matter has been set down and the employer did not show up at the arbitration. This could be for various reasons. For example, this could be because the employer was not aware of the date of the matter as the CCMA / Bargaining Council failed to send it to the correct address or the employer missed the set down due to oversight. Every case is unique.
The question that arises now is what is the next step? Do you pay the award or is there any recourse available to you as the employer?
The rules of the CCMA / Bargaining Council provide for a Rescission Application to be filed within 14 days after the employer becomes aware of the award. It is worth mentioning that this does not refer to the day that the matter was forwarded to your labour advisor but the day that you, as the employer, became aware of it.
A Rescission Application is an application that is submitted to the Commissioner in which you, as the employer, set out the reasons why you didn’t attend the matter and what happened with the specific employee. If the commissioner is of the opinion that there are reasonable grounds, he/she will rescind the award and it will be placed down for arbitration again in order for both parties to attend the matter and to have an opportunity to present their case.
Furthermore, a Rescission Application consists of two legs:
1. Chronology of events;
2. Bona Fide defence (merits of success).
The chronology of events refers to why you, as the employer, did not attend the matter. As mentioned above this could be for various reasons. The CCMA could perhaps not have reached you, or you as the employer could have missed the set down as a result of an oversight. Note that the set down can also be sent to you via SMS.
The reason why you as the employer did not attend the proceedings, will be considered in whether your rescission application will be granted or not.
The Bona Fide defence part of the Application refers to the facts of the matter, preceding the employee’s referral to the CCMA or bargaining council. In this part of the application you indicate whether the employee was dismissed or not, the reason why the employee was dismissed, if he/she was in fact dismissed and what procedure was followed, if any.
The better you complied with the requirements of the Labour Relations Act with regards to the dismissal of the employee, you better your chances of getting the award rescinded, will be.
Once this Application is drafted it has to be commissioned by a Commissioner of Oaths before it can be filed at the CCMA / Bargaining Council.
For a document to be properly commissioned the following steps need to be followed:
- Your initials and signature at the bottom right-hand corner of each page of the supporting Affidavit and the Annexures. (This refers to the person is who’s the name the Affidavit is drafted in. It is usually someone who has knowledge of the matter at hand)
- Sign on the last page on the space that is reflected as “Deponent”.
- Have the document in its entirety signed and initialled by a Commissioner of Oaths (The Commissioner of Oaths have to initial every single page of the Application)
In essence, it is very important that you start with the Application immediately once you receive the default award, alternatively, to send it to your legal advisor as soon as possible in order for them to assist you with drafting this Application as you only have 14 days from when you received it.
The CCMA / Bargaining Council advises that we give them 14 days to make a decision on whether the Application will successful or not.
ABOUT THE AUTHOR
Irma Strydom studied BCom Law at the University of the Pretoria and completed her degree in 2009. She joined SEESA on 01 March 2009 as a Legal Advisor to specialise in Labour Law and is currently a Senior Legal Advisor in the SEESA’s labour legal department in Pretoria, Gauteng.