CCMA Ruling Against Company In Its Absence And Without Its Knowledge
It often happens that companies do not receive important CCMA communication because a former employee used incorrect or no-longer-used contact details in proceedings before the CCMA. This may result in the CCMA making an adverse award or ruling against the company in its absence and without its knowledge.
The first step for the company is then to launch an application in the CCMA for rescission of the award or ruling in terms of section 144 of the Labour Relations Act (“LRA”).
Section 144 of the LRA provides inter alia that any commissioner who has issued an arbitration award or ruling may, on application of any affected party, rescind an arbitration award or ruling that was made in the absence of any party, on good cause shown.
Rule 32 of the CCMA Rules provides inter alia that an application for rescission of an arbitration award or ruling must be made within fourteen (14) days of the date on which the affected party (referred to below as “the company”) became aware of the arbitration award or ruling.
The application for rescission of the award or ruling must inter alia set out the following:
That the company’s absence and failure to oppose the proceedings was not due to wilful default (i.e., that its failure to appear was not on purpose);
Good cause for the company’s absence (this includes the prospects of success of the company defence); and,
Justifiable reasons for its absence must be substantiated by proof, if it is possible to do so.
The above list is not exhaustive and may differ from case to case.
In the case of Northern Training Trust v Maake & Others 2005 JOL 16369 (LC), the Labour Court held that:
“The enquiry in an application for the rescission of arbitration award is consequently bipartite. The first leg is one which is concerned with whether or not the notice of set down was sent (for instance by fax or registered post). Should evidence show that the notice was sent, a probability is then created that the notice sent was received. The second leg to the enquiry is one which concerns itself with the reasons proffered by the applicant who failed to attend arbitration proceedings. Such applicant needs to prove that he or she was not wilful in defaulting, that he or she has reasonable prospects of being successful with his or her case, should the award be set aside. However, the applicant needs not necessary deal fully with the merits of the case.”
The application for rescission must be made on notice and by a representative of the company and must be substantiated by a founding affidavit setting out the facts. The application must be properly served on the former employee and filed at the CCMA with proof of such service on the former employee.
In terms of Rule 31 of the CCMA Rules, the former employee will have 5 days to oppose the application (by notice of opposition and answering affidavit). Should the former employee oppose the application, the company will have 3 days to file a replying affidavit.
The CCMA will then decide either to deal with the matter on the papers or to set the matter down for oral argument.
The CCMA may, after considering the papers and/or oral argument, either decide to grant the application and rescind the award or ruling or it may dismiss the application for rescission.
Should the CCMA dismiss the application, the company’s only recourse would be to review the ruling in the Labour Court of South Africa. It is therefore important to ensure that the process of applying for rescission is dealt with by an experienced professional.
Our firm has a specialist team of labour lawyers who can assist your company with legal advice and representation in the CCMA, Bargaining Council, Labour Court, Labour Appeal Court and Constitutional Court.
