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A recurring problem experienced at the Commission for Conciliation, Mediation and Arbitration (CCMA) is that parties fail to attend conciliation or arbitration hearings. If an employer does not attend, a default award may be given in the employer's absence. If an employee does not attend, the matter may be dismissed in terms of the CCMA rules.
The question that often arises is whether or not an employer has any recourse against a default and an employee against a dismissal ruling if non-attendance was through no fault of their own. The simple answer is yes. In such a case, the employer or employee can apply to the CCMA for the rescission or setting aside of the award or ruling. If rescission is granted, then the CCMA will set the matter down for hearing afresh.
Section 144 of the Labour Relations Act , as amended, states: "Any commissioner who has issued an arbitration award or ruling, or any other commissioner appointed by the director for that purpose, may on that commissioner's own accord or, on the application of any affected party, vary or rescind an arbitration award or ruling: (a) erroneously sought or erroneously made in the absence of any party affected by that award."
In the matter of Foschini Group & Others  7 BLLR 691 (LC), the labour court held that where a party at all times intended to defend proceedings and such a party's default was not wilful, then granting an award in the party's absence may constitute an error sufficient to justify rescission.
It is strongly recommended that in a rescission application, an applicant demonstrates that he:
l has a genuine case to present;
l has not lost interest in pursuing the case; and
l has a reasonable explanation for being absent from the proceedings.
The most common ground for rescission applications is that the employer or employee did not receive the notice of the conciliation or arbitration sent by the CCMA via fax.
The law governing the inquiry into whether or not a party has been notified of a hearing is set out in the matter of Northern Province Local Government Association v CCMA & Others  5 BLLR 539 (LC).
In this matter, it was held that the inquiry into whether or not a party has been notified of a hearing is twofold. Firstly was the notice properly transmitted and secondly, has the non-attending party given a reasonable explanation for not attending the proceedings?
Therefore, commissioners are not entitled to regard fax transmission slips as definitive proof that a party has received notice of the CCMA proceedings. A party's claim that notice was not received must be properly investigated and considered.
Rule 32 of the CCMA Rules states that a rescission application must be made within 14 calendar days of the date on which the applicant became aware of the award or ruling.
l Lavery Modise is a director at Routledge Modise Attorneys. He is assisted by Sian Wilkins, an associate at Routledge Modise Attorneys.