Often employers do not receive notifications from relevant forums timeously – sometimes not even at all – after employees who were dismissed refer the matters to such forums for the appropriate process. It leaves an employer in a disadvantaged position.
The frustration faced with when not receiving a set down (which refers to the official notification from the forum of the date and time of the specific matter) is immense as it creates great risk and administrative hazards which lead to unnecessary time and effort spent.
To understand what is required when such a notification is not received, an employer has to understand the process that will follow when an employee refers the matter to the relevant forum.
Although there are various processes in the dispute resolution procedure, for purposes of this article focus is placed on arguably the most common ones in order to illustrate briefly what the dispute resolution procedure entails:
During this process the Commissioner will only attempt to assist the parties to reach an amicable settlement which will lead to a speedy finalisation of the matter. If the parties manage to reach a settlement, a settlement agreement will be drafted or completed and will be signed by all parties involved. Should the matter remain unresolved the Commissioner will issue a certificate of non-resolution. The Commissioner will also indicate on the certificate the procedure to be followed subsequently.
Conciliation directly after Arbitration (Con/Arb)
This is a process affording the Commissioner an opportunity to assist in an attempt to resolve the matter in the settlement process as described above. Should the conciliation be unsuccessful the matter will automatically proceed to arbitration.
Both the applicant and the respondent have the right to object to such a procedure. Should such an objection be received timeously, the matter will only be heard at conciliation level.
Should the aforementioned processes not reach finality or bring resolve to the disputes, the Commissioner will afford both parties the opportunity to present their cases, where after the Commissioner will issue his or her award. Naturally, proper preparation is imperative prior to this stage.
Should the matter have been set down for either Con/Arb or Arbitration and the set down was not received by the Respondent, despite allegations by the relevant forum that the notification was sent by making use of the appropriate manners to effect service as stipulated in the rules of the relevant forum, what is the position of the employer?
If no objection to the Con/Arb was filed or the matter was set down for arbitration, the Commissioner will be in a position to proceed in the absence of the Respondent (employer) should the Commissioner be satisfied that proper service was effected. In essence, the Commissioner will only be required to deal with the version of events from the Applicant. As a consequence, the Commissioner will be able to issue a default award against the Respondent which may be enforced by the Applicant.
However, the Respondent is left with a remedy. In terms of the rules of the relevant forum the employer will be in a position to bring a Rescission Application to have the default award rescinded. Such an application will have to be filed within 14 days after the Respondent became aware of the default award. The matter will then be referred back to the forum for Arbitration. The successful rescission application will also render the default award null and void.
Section 144 of the Labour Relations Act specifically prescribes rescission applications. In addition, in the matter Shoprite Checkers (Pty) Limited v CCMA and others (2007) 28 ILJ 2246 (LAC) it was established that the ground for rescission will include “good cause shown”. In order to determine what will constitute good cause, two factors will be taken into account. The first factor to be considered is whether the Respondent has a good reason for the default (i.e. the failure to attend the matter as set down) and the second factor is whether the Respondent has a prima facie case, in other words, there should be good prospects of success in the event that Arbitration is initiated afresh.
In the Northern Province Local Government Association v CCMA and Others (2001) 5 BLLR (LC) at 545 it was held that:
“An applicant in his application for the rescission of a default judgement must show good cause and prove that he at no time denounced his defence, and that he has a serious intention of proceeding with the case. In order to show good cause an applicant must provide a reasonable explanation for his default, his explanation must be made bona fide and he must show that he has a bona fide defence to the plaintiff’s claims.”
What is noteworthy is that in MM Steel Construction CC v Steel Engineering and Allied Workers Union of SA and others (1994) 15 ILJ 1310 (LAC) it was found that the two factors mentioned above should not be “assessed mechanistically and in isolation”
When drafting an application for rescission, the employer should firstly familiarise itself with the rules of the relevant forum. These rules clearly stipulate the time frames in which such application should be filed.
The key in drafting the application is to do proper research and to be thorough at all times.
Unfortunately there is no bulletproof recipe to ensure the timeous receiving of the set down preventing a possible default award and all concomitant administrative nightmares, therefore it may prove to be essential to be proactive and vigilant when receiving the initial referral form and to actively enquire from the relevant forum to inquire whether a date has been set down as this will assist in preventing any unnecessary rescission and other applications.
In conclusion, whilst an employer may not always receive notifications of referrals and more specifically notices of set down, the remedies provided by the dispute resolution procedure offer the relief required. The extent of such relief will depend on the steps that the employer or his representative takes and the understanding and utilising of the procedure.
Douw Breed is a director at Barnard Incorporated Attorneys.
Barnard Incorporated is a firm of attorneys situated in Centurion, Pretoria.