Rescinding a Default Award
A Default Award is usually made by a Commissioner where one party was absent to the arbitration proceedings. This means that the Commissioner will only hear the evidence of the attending party and make a ruling in his/her favour, depending on the evidence and facts.
As stated above a Default Award is granted where a party to the proceedings fails to attend the Arbitration. The Commissioner will first establish whether the party in question had received sufficient notice to attend the Arbitration and if they indeed received the Notice of Set Down. If the commissioner is satisfied that the party in question received sufficient notice, he will proceed with the Arbitration in Default. If the Commissioner is not satisfied, he will most likely postpone the matter to another date in order for the party in question to attend the Arbitration.
If the Commissioner proceeds in default, he will only hear the evidence that the attending party represents and will make a Default Award with the evidence that is provided to him.
The Commissioner will then provide the parties with the Default Award within 14 [fourteen] days from the date of the arbitration.
A Default Award was granted against me, what now?
The answer is very simple. A Rescission Application would have to be applied for. When applying for a rescission, the party must prove that he was unaware that the matter was set down on the specific date, or he/she must be able to prove that he/she was unable to attend due to various reasons.
Recission of Awards
Section 144 of the LRA (Labour Relations Act) makes provision for the Rescission of an Award. Section 144 of the LRA reads as follows:
Variation and rescission of arbitration awards and rulings.
Any commissioner who has issued an arbitration award or ruling or any other commissioner appointed by the director for that purpose, may on that commissioner’s own accord or, on the application of any affected party, vary or rescind an arbitration award or ruling –
(a) erroneously sought or erroneously made in the absence of any party affected by
(b) in which there is an ambiguity, or an obvious error or omission, but only to the
extent of that ambiguity, error or omission; or
(c) granted as a result of a mistake common to the parties to the proceedings.
What would have to be proven?
The party applying for the Rescission would have to show good cause as to why the rescission should be granted. If a party institutes the Rescission Application, that party would have to provide details as to their absence at the Arbitration and provide a full explanation of why the party was not in willful default and the reasons why that party would have good prospects of succeeding in the matter.
It is important to note that a Rescission Application can be opposed or unopposed. If a party wishes to oppose the rescission they must do it within the time periods as prescribed.
The Commissioner will hear the matter and make a ruling based on the evidence provided to him. If he rules that a rescission should be granted, the matter will be set down for hearing at the CCMA and the matter will be heard, as if it is the first time that the parties attended the CCMA.
When you are unhappy with the outcome of an arbitration award, the matter must be taken on review within 6 [six] weeks from receiving the arbitration award. An arbitration award cannot be rescinded and the main reason for this is because both parties were present at the arbitration proceedings. When a default award was granted in the absence of a party, that party can apply for the matter to be rescinded at the CCMA/relevant bargaining council.