Applying the rules of the CCMA is not always plain sailing, as the dismissed employee found out in the case of Builders Trade Depot v CCMA and Others LC D822/10 28 November 2011 per Steenkamp J (summarised in SILCS 2012:07).
The employee had been dismissed for drinking on duty whilst on a written warning for the same offence. The employee’s unfair dismissal dispute went to con/arb at the CCMA and in the absence of the employer the commissioner found the dismissal was fair. That should have been the end of the matter.
The employee applied for rescission of the award, which was granted and the dispute was arbitrated again before another commissioner. Both parties were present and this time the dismissal was found to be unfair and the employee was reinstated. The employer took the entire matter on review to the Labour Court and won. Both the rescission and the final award were set aside.
The CCMA Rules
Rule 32 of the CCMA Rules say that an application to vary or rescind and arbitration award or ruling must be made within 14 days of the applicant becoming aware of the award or ruling or a mistake common to the parties to the proceedings. But the Rules do not say who may apply, or in what circumstances.
The Labour Relations Act
The court referred back to section 144 the Labour Relations Act and found that the commissioner who granted rescission acted outside of his powers conferred in that section. Section 144 states that the affected party may apply for rescission or variation of an award or ruling:
(a) erroneously sought or erroneously made in the absence of any party affected by that award;
(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.
The court held that the employee was not an affected party in whose absence the award was made, as contemplated in (a) since the employee was present. Subsection (b) did not apply because there was no allegation of an ambiguity or either obvious error or omission in the award. Subsection (c) did not apply either since there was no mistake common to the parties. Therefore the commissioner exceeded his powers in rescinding the award. The court also reviewed and set aside the second award on the basis that no reasonable arbitrator would have found the dismissal to be unfair.
Adv. Peter Kantor’s book on the CCMA’s rules includes the relevant sections of the Labour Relations Act and explains in simple terms how to apply the law. Buy the Third Edition here for R198.00