On occasion an employer may receive an arbitration award from the CCMA and will have no idea where it came from or even that there was an arbitration at the CCMA. THis is a default arbitration award.
These awards are issued by Commissioners where the employee party is present at the CCMA, but the employer party is not. A Commissioner will issue an award in the employer’s absence where it appears from the file contents that the employee has alerted the employer of his or her intention to bring a CCMA case and the CCMA then in turn has, using the details supplied by the employee, notified the employer of the arbitration.
It is possible to set these default arbitration awards aside, however, the employer must move quickly to do so. Within 14 calendar days of becoming aware of the arbitration award, the employer must submit a rescission application to the CCMA and the employee. A person with the relevant authority must depose to an affidavit setting out 1) why the employer party was not at the arbitration and 2) whether the employer, if given a chance to present their evidence at the arbitration, would be successful.
When a Commissioner decides whether to set aside the default arbitration award and set the matter down for arbitration again, the decision is usually only based on the affidavits by the employer and employee parties. It is therefore very important for the employer to make a compelling case for the rescission in the affidavit.
If the Commissioner finds that the employer has not submitted a compelling reason, the default arbitration award will remain in place and the employee may legally enforce it. For this reason it is recommended that employers obtain legal advice when setting aside a default arbitration award.
Contact our Labour Department for assistance in setting aside default arbitration awards.
