Disputing rescission decisions

By Ivan Israelstam, chief executive of Labour Law Management Consulting

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

LABOUR COURT REVIEW

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, ‘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 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

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

RESCISSION APPLICATION

A rescission application is normally made to the same arbitrator who made the original arbitration award. 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

· Contained an ambiguity (i.e could mean two different things) or an obvious error or omission

· Was granted as a result of a mistake common 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. For example, if the employer fails to attend the arbitration hearing the arbitrator might, on the basis of the employee’s evidence, decide that the dismissal was unfair.

· On the other hand, if the employee fails to attend the arbitration hearing the arbitrator may decide to dismiss the case and close the file. However, 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, 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 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. 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

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