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Ivan will be presenting a one day workshop on how to win at the CCMA on 21 October 2005, for more information contact
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Ivan Israelstam
Too many employers have received default awards from the Commission for Conciliation, Mediation and Arbitration (CCMA). The term "default award" refers to the situation where the employer fails to attend the arbitration hearing and the arbitrator therefore makes an award in the employee's favour.
The arbitrator has to accept the employee's version and find against the absent employer. Whose fault is it when CCMA notices of any kind do not reach the parties? At times the CCMA fails to send notices to the parties. For example, in the case of a banking industry dispute, the CCMA agreed to postpone the arbitration hearing.
However, neither the commissioner nor the employee was notified of this. As the employer had been notified it did not attend on the day, but the hearing went ahead anyway. This error was only discovered on the date of the postponed hearing when the employer turned up for the hearing. The employer was then informed that the arbitration hearing had been held already and an award would be sent to the parties!
On other occasions, the CCMA has been able to provide proof that it sent notices to the parties but one or other party claims not to have received its notice. This apparent paradox could be explained in a number of ways:
· The CCMA faxes the notice to the employer but, while it does arrive on the employer's fax machine, it is not given to the executive dealing with the matter.
· It is possible that the CCMA case administrator, being under pressure of work, might send the fax in a faulty way. For example, if the notice is put into the fax machine upside down in error, the recipient will get blank pages!
· If the notice is sent by registered post it is possible for the post office to deliver the registered slip to the wrong address.
That is, the post office's registered slip, notifying the party that a registered article is to be collected, could be put into the wrong post box in error. While the CCMA's notice has been sent, it has not been received by the addressee! What can one do if of these or other serious errors result in you not receiving your notice and the arbitration hearing goes on without you? Your first step is to apply for a rescission (or cancellation) of the default award.
There are strict rules and time deadlines for rescission applications. A rescission application is normally made to the same arbitrator who made the original arbitration award on the grounds that the award was erroneously sought or made in the absence of any party affected by it or it contained an ambiguity or an obvious error or omission.
A rescission application might be granted if it is properly put together and proof is submitted of factors such as illness, or failure of the CCMA effectively to serve the notice. In the rescission application the main issues argued are the applicant's reasons for absence and the applicant's prospects of succeeding with the case if the rescission is granted.
Should your rescission application be turned down, you can take the arbitrator on review to the labour court. In the case of Northern Province Local Government Association vs CCMA and Others, the labour court found that commissioners are not entitled to regard fax transmission slips as definitive proof that the party received the notice of the arbitration hearing.
This judgement should not make parties complacent. Due to the fact that fax transmission reports are generally accepted as proof of legal service of notices, any argument as to why such fax reports should not be accepted need to be very well argued.
In the absence of convincing proof and argument, the CCMA's rescission ruling is likely to be upheld by the labour court.
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