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Thread: Labour Court Review Prospects

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    Labour Court Review Prospects

    Unbeknown to us, our gardener who had worked for us for just under a year (we have proof of when he commenced work) referred a dispute of unfair dismissal to the CCMA and a default award was made against me.
    As soon as we got to know via sms about the award, we contacted the CCMA for a rescission of the award on the basis that we were unaware of the hearings, they had the wrong name and address details and that we had not effected a dismissal.
    I attended the rescission hearing together with the applicant. A ruling dated 13 Dec 2015 denied a rescission. The CCMA accepted that I was unaware of the con/arb notice and also accepted that the default award reflected an incorrect first name however they did not accept that I was unaware of the arbitration proceeding and found that I was evasive, contradictory and unreliable in my evidence. The CCMA also quoted Rule 5A making provision for the service on parties by sms.

    • I would like some advice on whether I might have a case for review at the Labour Court based on the fact that:
    • I did not receive any mail in the post
    • I did not see any sms’s as the phone was off during my absence
    • I did not effect a dismissal
    • The commissioner was very biased by accepting the employee’s version without any verification
    • Not questioning any contradictory evidence such as when the employee gave two different start dates (July in the con/arb and June in the rescission hearing)
    • My first name is still incorrect in the variation and rescission rulings

    Should I not have a reasonable prospect for review, I would like to know when payment is due and what if I cannot afford to make the payment.
    This matter was heard in Durban and I would appreciate some contact details of labour lawyers to progress a review. I am happy to deal with this matter in JHB as well.

    Note that I have kept this as brief as possible but am willing to send a copy of the rulings to you and provide more details. Please advise me on the prospects for review and the payment.

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    A few details would help.
    The first is on what date, did he refer the dispute and when was default award made?

    In terms of review in labour matters - the test is, whether "a reasonable decision maker with the same evidence before him, would have reached the same decision."
    Also - is the decision so shocking that it shocks the senses.

    Rescission is for when a judgment is made in absence - and the absence stems from no fault of the defaulter.
    The crisp issue is whether there is fault.
    Prospects of success play a role and the time involved.

    The opportunity to be heard is the basic tenet of our legal system.
    It is not often a rescission is denied.
    SMS notification of an award is not notification of the case itself.
    So, if the commissioner only refers to the outcome sms that is a problem in terms of notice. (Clearly if I do not know of a matter, then there is no fault for missing)

    the absence of a dismissal is also key. the employee must prove dismissal, where after the employer must prove it was fair.
    the issue is that in default, it is most likely the dismissal will be proved (nothing against it).

    The short service also helps you.

    It seems as if you have good prospects, a lot turns on what evidence did you have of not attending, but this is NOT the be all and end all.
    Where there is dispute of fact, a hearing is required, and therefore rescission is appropriate in order to ventilate the matter.

    In terms of the award and payment.
    The award normally states when payment must be made by and when re-employment (if pertinent) occurs.
    If you cannot pay, the sheriff will execute on it and attach goods.
    Anthony Sterne
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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