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Always oppose a rescission application

Ivan Israelstam

An arbitration award is normally a win-lose decision. Whichever way the decision goes, one party is always going to be considering how to get the order set aside. There are two ways you can do this: via a labour court review or a rescission application.

What happens in a labour court review?

Here the party who's unhappy with the award asks the labour court to set the award aside because the arbitrator, in making the award, didn't act appropriately. The review application is not an appeal against the award decision but rather a claim that the arbitrator:

  • Committed misconduct in his arbitration duties,
  • Committed a gross irregularity during the arbitration proceedings,
  • Exceeded his/her powers, or
  • Made the award improperly.

The above criteria refer to misconduct and irregularities including, but not limited to:

  • Taking into account evidence that wasn't 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 case,
  • Delivering a biased award,
  • Taking a bribe, or
  • Failing to apply his mind to the facts in evidence.

When is a rescission application made?

A rescission application is normally submitted 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 cancel the award on the grounds that it:

  • Was incorrectly sought or made in the absence of any party affected by it,
  • Contained an ambiguity or an obvious error or omission, or
  • Was granted as a result of a common mistake.

The grounds for rescission order are very narrow and such applications are most commonly brought when one party hasn't attended the arbitration hearing and the award has been made in that party's absence. For example, if the employer doesn't attend the arbitration hearing the arbitrator might, on the basis of the employee's evidence, decide that the dismissal was unfair.

Typical reasons for rescission applications being granted include:
  • `The rescission application being made within the 14-day deadline,
  • Valid proof being submitted of illness,
  • If the CCMA/bargaining council didn’t let the party know what the date of the hearing was, and/or
  • The opposing party didn’t oppose the rescission application.

On the other hand, if the employee doesn’t attend the arbitration hearing the arbitrator may decide to dismiss the case and close the file. However, if the party who didn’t attend the hearing has an excuse for his absence, he may apply to the arbitrator to cancel the award to allow a new arbitration hearing to scheduled.

Typical reasons given in rescission applications for not attending arbitration hearings include:
  • Illness,
  • Incarceration,
  • Breakdown of transport,
  • Traffic congestion, and
  • Not receiving the date for the hearing.