What are the implications if an employer misses an arbitration hearing?

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The Labour Relations Act (LRA) provides two ways of going about setting aside an arbitration award; via a Labour Court review, or via a rescission application.

 

 

In a Labour Court review, the party, who is unhappy with the award, asks the Labour Court to set the award aside on the grounds that the arbitrator, in making the award, ‘misconducted himself/herself’. That is, the review application is not an appeal against the award decision, but rather a claim that the arbitrator: 

  • Committed misconduct in relation to his/her arbitration duties,
  • Committed a gross irregularity in the conduct of the arbitration proceedings,
  • Exceeded his/her powers, or
  • Made the award improperly. 

The above criteria refer to misconduct and irregularities including, but not limited to:

  • Taking into account evidence that was not put before the arbitrator,
  • Refusing to allow valid and relevant evidence to be brought,
  • Ignoring statutory requirements or legal principles,
  • Unduly assisting one or other party with his/her case,
  • Delivering a biased award,
  • Taking a bribe, or
  • Failure to apply his/her mind to the facts in evidence.

A party may, within 14 days of becoming aware of the arbitration award, apply to the arbitrator to rescind (cancel) the award on the grounds that the award: 

  • Was erroneously sought, or made in the absence of any party affected by it, on good cause shown,
  • Contained an ambiguity (i.e could mean two different things), or an obvious error or omission, or
  • Was granted as a result of a mistake common to the parties. 

The grounds for rescission are very narrow, and such applications are most commonly brought when one party has not attended the arbitration hearing, and the award has been made in that party’s absence. Where the party who has failed to attend the hearing has an excuse for his/her absence, he/she may apply to the arbitrator to rescind the award, so as to allow a new arbitration hearing to be set down. Typical reasons for rescission applications being granted include: 

  • The rescission application is made within the 14-day deadline, and 
  • Valid proof is submitted of illness, or of failure of CCMA/bargaining council to serve the notice of set down on the party concerned. 

However, employers are warned that the CCMA requires valid reasons, and thorough explanations for the absence of parties. In the case of Shoprite Checkers vs CCMA & others (2005, 8 BLLR 816) the employer party failed to attend the arbitration hearing. The arbitrator held the hearing in absentia, and granted an award in favour of the employee. The employer then applied for a rescission, on the grounds that the assistant of the person in charge of the matter had mis-diarised the date of the arbitration. The CCMA turned down the rescission application.

The employer, therefore, took the matter on review to the Labour Court. The Court upheld the CCMA’s decision saying that a negligent error by the employer is not grounds for rescission. The Court ordered the employer to pay the employee’s legal costs expended on defending the Labour Court review application.

In Sebati vs Rens Security Services cc (2009, 11 BALR 1170) the CCMA turned down a rescission application, where the employer failed to explain how the notice of hearing had failed to reach the relevant employer official. 

Parties are therefore advised to: 

  • Exercise extreme care in keeping records of CCMA hearings,
  • Ensure that they attend all CCMA meetings and hearings, and
  • Get advice from a reputable labour law expert before applying for rescissions and lodging applications at the Labour Court.

 

BY   Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawadvice.co.za 

To attend our 18 October seminar on COMBATTING WORKPLACE ABSENTEEISM please contact Ronni on ronni@labourlawadvice.co.za or on 0845217492.

 

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