The African National Congress is starting its “dispute resolution process” in a bid to address the a.
Once an employee has referred an unresolved dispute for arbitration, the Commission for Conciliation, Mediation and Arbitration (CCMA) will notify the parties either by fax or registered mail to attend the arbitration proceedings. Rule 31 of the CCMA rules states that such a notice must be given, in writing, to the parties at least 21 days before the arbitration proceedings take place.
The parties are expected to attend the hearing on the date and time set by the CCMA. If the employee is the applicant in the matter and fails to attend the arbitration proceedings, then the commissioner may dismiss the matter.
Rule 30 of the CCMA states that the commissioner must be satisfied that the employee had been properly notified of the date, time and venue of the proceedings before dismissing the matter.
The commissioner normally relies on the transmission report that shows that the notice was faxed to be sure that the employee is aware of the details of the proceedings.
Rule 32 states that an employee whose matter has been dismissed may apply to have the finding rescinded or declared invalid.
For the application to be successful, the employee will have to satisfy the commissioner that he/she had a valid reason for failing to attend the arbitration proceedings even though the transmission report was received by the commissioner. The transmission report is prima facie proof that the notice was sent.
The question of whether or not the transmission report can be relied on as conclusive proof that the party to a dispute has been notified in terms of the rule of the CCMA came before the courts.
Although the issues that came before the courts related to default judgment given by the commissioner in the instance where the respondent failed to attend the arbitration proceedings, the principle also applies in this case.
In that case the court ruled that a commissioner is required to make sure that the party who failed to attend proceedings had been properly notified and that a notice of arbitration given was not the same as a service on the parties.
The courts therefore held that "in deciding whether or not a fax transmission was received, proof that the fax was indeed sent creates a probability in favour of receipt, but does not logically constitute conclusive evidence of such receipt".
The court further required that the commissioner should be satisfiedthat the parties in the dispute had been properly notified. The reliance on the transmission report was not sufficient for the commissioner to dismiss the matter.
A ruling by the commissioner dismissing the employee's matter may be rescinded on the grounds that the employee did not receive the notice.