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Ensure that you have good reason when disputing rescission decisions

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Ensure that you have good reason when disputing rescission decisions

4th January 2021

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The Labour Relations Act (LRA) does not allow any party to appeal against an arbitration award. However, such awards can be overturned via a Labour Court review or via a rescission application made to CCMA.

LABOUR COURT REVIEW

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Here 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:

  • 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

Examples of this include:

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  • 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
  • Failure to apply his/her mind to the facts in evidence

RESCISSION APPLICATION

A rescission application is made to the CCMA in terms of section 144 of the LRA on the grounds that the award was made in error.

Rescission 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.

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, parties are warned that the CCMA is unlikely to accept excuses for the absence of parties where the employer could have avoided the cause of absence. That is, if it had been within the power of the absent party to have attended the arbitration the chances of a rescission being granted are small. In Shoprite Checkers vs CCMA & others (2005, 8 BLLR 816) the employer 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. Parties are therefore advised to:

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

To observe our experts debating hot labour law topics please go to www.labourlawadvice.co.za and click on the Labour Law Debate item in the main menu.

Written 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. Web Address: www.labourlawadvice.co.za.

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