We at CEO have published numerous articles on Default Arbitration Awards made by the CCMA. Those articles primarily focused on the remedies available to the employer in terms of the Labour Relations Act (LRA). This article will analyse how a commissioner comes to their outcome and the methodology they could or should have applied.
It's a frequent occurrence that employers are unaware of arbitration processes to which they are a party and which arbitrations may be concluded in their absence. This could be because the CCMA failed to notify the employer correctly or that the employer erroneously failed to attend for some reason or another. Regardless of the reason for non-attendance, once the commissioner is, on face value, satisfied that the notice has been served upon the employer, they are empowered to proceed with the arbitration in the employer's absence.
In cases where the applicant, usually the employee, fails to attend the process, the commissioner will issue a dismissal ruling, and the CCMA will proceed to close the file. The file will only be opened after the applicant has launched a successful rescission application of the dismissal ruling. In cases where the respondent, usually the employer, fails to attend the process, the commissioner is entitled to proceed with a Default Award. Essentially, this entails a process whereby the commissioner considers the applicant's version as uncontested and makes a finding on a balance of probabilities.
The arbitration process is inherently adversarial in nature. The parties will compete to have their versions preferred over their opponents. The parties whose version is preferred will prevail, and the outcome will be in their favour.
Like any adversarial process, issues of, inter alia, burden of proof and duty to begin must be considered. In unfair dismissal disputes, the applicant (employee) bears the onus to prove that they have been dismissed. Once a dismissal has been established, the respondent (employer) must show that the dismissal was substantively and procedurally fair. In the case of a default process, the burden of proof remains intact. The applicant will still be required to convince the commissioner they were indeed dismissed. Once established, the commissioner must determine the fairness of that dismissal based on the unchallenged evidence of the applicant.
The CCMA's guidelines for Commissioners – "Arbitrations relating to Misconduct", contain a set of standards that commissioners should use when arbitrating disputes. In terms of the code, the methodology to be adopted by commissioners should be as follows:
"Analysing the evidence involves a determination of the relevant facts for the purpose of coming to a decision on the procedural and substantive fairness of the decision to dismiss. It involves findings of fact based on an assessment of credibility and the probabilities and an assessment of the applicable rules in the light of those findings".
"An arbitrator must weigh the evidence as a whole, taking into account the following factors:
- The probabilities – This requires a formulation of the contending versions and a weighing up of those versions to determine which is the more probable. The factors for that determination have to be identified and justified.
- The reliability of the witnesses – This involves an assessment of the following:
- The extent of the witness's first-hand knowledge of events.
- Any interest or bias the witness may have.
- Any contradictions and inconsistencies.
- Corroboration from the other witnesses.
- The credibility of witness, including demeanour."
To reiterate, in default processes, the applicant's version is unchallenged. In these cases, the commissioner is required to take a different approach. The adversarial nature of the arbitration should be replaced with an inquisitorial approach. In Network Field Marketing (Pty) Ltd v Mngezana No and Others (JR 2802/09) [2011] ZALCJHB 9; [2011] 7 BLLR 699 (LC); (2011) 32 ILJ 1705 (LC), the court noted that when resolving a dispute of fact, a commissioner should undertake a balanced assessment of the credibility, reliability and probability of the different versions given.
For the commissioner to properly assess the unchallenged evidence of a single party, they should adopt an approach whereby the evidence being led is considered, taking into account its credibility, reliability, and probability. It is not appropriate for the commissioner to punish the respondent's non-attendance with an unfavourable award by simply rubber-stamping the applicant's relief sought. The commissioner must dispense their duties with due diligence by assessing the evidence in the above manner. This process should include the commissioner asking questions of clarity and even interrogating the applicant's version where necessary. The arbitrating commissioner should be satisfied that the burden of proof has been met in terms of establishing the dismissal's existence and the fairness thereof.
The arbitrator's enquiry should form part of the formal record, although it may not be included in the award. Should the defaulting party wish to challenge the award, in terms of a review process, the full transcript must be made available for the court record.
Although not common, commissioners may reject the undisputed version of the applicant's evidence and do not award any relief to the applicant when dealing with default arbitrations. This is a result of the commissioner carefully considering the issues of reliability and credibility of the evidence.
Employers should not hesitate to contact their nearest CEO Office so we can advise you on the rescission and review processes. Both these processes are time-sensitive.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
