Ivan Israelstam | Chief Executive | Labour Law Management Consulting | mail me |
Where the employer fails to attend an arbitration hearing the arbitrator is entitled to continue without the employer unless the arbitrator is aware of an acceptable reason for the employer’s absence.
As the arbitrator has little or no way of testing the truth of the employee’s evidence he/she will most often accept the employee’s version and find against the absent employer. This is called a default judgement.
What can you do if you receive such a default judgement? Your first step is to apply for a rescission (or cancellation) of the default award. As there are strict rules and time deadlines for such applications you must ensure that you urgently obtain assistance from a reputable labour law expert.
Should your rescission application be turned down you can take the arbitrator on review to the Labour Court.
In the case of Total Facilities Management (Pty) Ltd vs CCMA & others (2008, 1 BLLR 73) the employer missed the arbitration hearing because the CCMA unwittingly sent the notice of the hearing to the computer of an official of the employer who had left the company. The CCMA continued with the hearing and made a default award in favour of the employee. The employer then applied for rescission of that award. The CCMA arbitrator accepted that the employer was not at fault for failing to attend the arbitration hearing but still turned down the rescission application because of the employer’s alleged failure to show that, should the rescission be granted, the employer had reasonable prospects of winning its case.
The employer then took this ruling on review to the Labour Court which overturned the arbitrator’s ruling. The Court found that the arbitrator had erroneously based her ruling on the evidence given by the employee at the arbitration hearing.
These judgements should not make employers complacent. The reason for the employer’s absence at the hearing as well as the employer’s prospects of success need to be very well argued and backed up. In the absence of this the CCMA is likely to turn down rescission applications. The employer is then left to take the matter to Labour Court but this should be avoided because, firstly, you may not win. Secondly, going to Labour Court is expensive. Thirdly, if you lose you may have to pay the other party’s legal fees. It is therefore obviously better to ensure that you win the rescission application.
